Summary: Mrs X complained about the Council’s handling of her late mother’s care. We found fault because the Council was too slow to begin assessment and planning processes, too slow to share care cost information and did not always follow up on actions or effectively communicate with Mrs X. This caused her avoidable distress, frustration and uncertainty. To remedy this injustice, the Council has agreed to apologise and make a symbolic payment to her.

The complaint

1. Mrs X complains about the Council’s actions in relation to her late mother, Mrs Y’s, care. Specifically, she complains:
• the Council did not properly involve her in initial best interest decisions (BID) about Mrs Y or subsequent care arrangements;
• the Council did not adequately involve Mrs X in financial matters and placed Mrs Y in a care home which she could not afford and was not good value for money;
• the Council did not advise her of the care home costs in a timely manner;
• its communication has been poor;
• that it did not adequately respond to concerns she raised about her mother’s care at the home; and
• she has experienced racism from the Council.
2. Mrs X says this has caused her significant distress and frustration. She says her mother also experienced distress as she had to move care homes to a more cost-efficient provider.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:
• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

6. My investigation begins in August 2023 when the Council became involved in Mrs Y’s care.
7. My investigation ends when the Council issued its complaint response to Mrs X in August 2024.

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How I considered this complaint

8. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Mrs X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Lasting Power of Attorney

10. A Lasting Power of Attorney (LPA) is a legal document, which allows a person to choose one or more persons to make decisions for them, when they become unable to do so themselves. There are two types of LPA: a) Property and Finance and b) Health and Welfare.

Mental capacity assessment

11. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt.

Best interest decision making

12. A key principle of the Mental Capacity Act 2005 (the Act) is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.
13. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests. Included in this is the duty of the decision maker to take into account the views of anyone interested in the person’s welfare or anyone who holds an LPA for the person concerned.

Residential care - choice of care homes

14. The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 set out what people should expect from a council when it arranges a care home place for them. Where the care planning process has determined a person’s needs are best met in a care home, the council must provide for the person’s preferred choice of accommodation, subject to certain conditions.
15. The council must ensure:

• the person has a genuine choice of accommodation;
• at least one accommodation option is available and affordable within the person’s personal budget; and,
• there is more than one of those options.

Care and support assessment

16. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. It must involve the individual and where suitable their carer or any other person they might want involved.
17. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs.

Care plan

18. The Care Act 2014 (the Care Act) gives councils a legal responsibility to provide a care and support plan. The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.

Charging for permanent residential care

19. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
20. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
21. People who have over £23,250 must pay the full cost of their residential care home fees. Once their capital has reduced to less than this, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below £14,250, they will not need to contribute to the cost of their care and support from their capital.

NHS Funded Nursing Care and Continuing Health Care

22. NHS Funded Nursing Care (FNC) is the funding provided by the NHS to care homes providing nursing, to support the cost of nursing care delivered by registered nurses.
23. NHS Continuing Healthcare (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. CHC funding can be provided in any setting and can be used to pay for a person’s residential nursing home fees in some circumstances.

What happened

24. I have set out below a summary of the key events. This is not meant to show everything that happened.
25. Mrs X is representing her late mother, Mrs Y, in this complaint. Mrs X held LPA for Mrs Y’s finances and property, but not for health and welfare. In the circumstances of this complaint, the Council was responsible for making the decision about where to place Mrs Y due to her care needs. Mrs X was responsible for overseeing the financial aspects as her mother’s LPA holder for finance and property.

2023

26. Mrs Y was in hospital in the summer of 2023. During her time there, a social worker was allocated to Mrs Y’s case, Officer A.
27. On 16 August 2023, Officer A visited Mrs Y at the hospital and assessed that she lacked capacity regarding her care and support. The next day, Officer A contacted Mrs X to discuss Mrs Y’s care. Mrs X agreed a stepdown placement would be the best course of action. This would allow Mrs Y to move from hospital to a lower level of care but still be supported in a care home.
28. The Council recorded a BID on 22 August. By 25 August, the Council decided to look for a stepdown placement for Mrs Y.
29. After an extensive search for a suitable home over the next three weeks, only one of the 18 providers approached said it could accommodate Mrs Y. The provider, Home A, assessed Mrs Y on 18 September. She moved in on 21 September. It advised the Council the weekly cost was £3250.
30. Officer A visited Home A late in October so she could begin to complete documents to apply for CHC funding for Mrs Y. The six-week period during which the Council was paying for Mrs Y’s care ended on 2 November. The Council began a Care Act assessment of Mrs Y’s needs on 9 November.
31. On 11 December, a meeting was held between the local health authority, the Council, Mrs X and others. This was to decide if Mrs Y would qualify for CHC funding. A decision was then made that Mrs Y did not qualify for CHC funding but would receive FNC funding instead. Mrs X later appealed this decision with the local health authority.
32. Mrs X says her and Officer A spoke on the telephone on 20 December. Mrs X says she did not know of the cost of Home A at this time, so asked Officer A. Mrs X was concerned at the cost of the placement and says she told Officer A it was too expensive for Mrs Y.

2024

33. Officer A and Mrs X communicated in January 2024. Mrs X asked for an update about what was happening about reducing Home A’s weekly fee. Officer A said the Council was exploring this but it was unlikely costs would go down. The Council also began to chase Mrs X to provide Mrs Y’s financial information so it could complete Mrs Y’s financial assessment. The Council advised that any money paid for Home A’s fees could be reclaimed if Mrs X’s appeal about the CHC funding was successful.
34. On 6 February, Mrs X signed an agreement to say she would pay the full costs of Mrs Y’s residential care fees. She added a sentence to the document to say this was pending the appeal decision about CHC funding.
35. Mrs X emailed the Council on 15 February unhappy about care home costs. The Council completed a care and support plan for Mrs Y on 19 February.
36. Mrs X and the Council continued to communicate over the coming months. Mrs X remained unhappy at Home A’s weekly fees.
37. Mrs Y’s case was allocated to a new social worker in mid-May, Officer B. Officer B communicated with Mrs X over the coming months. He re-assessed Mrs Y, including her mental capacity, and made a new BID. By the beginning of July, Officer B confirmed that Mrs X could look into sourcing another care home for Mrs Y.
38. Mrs X complained to the Council and it responded in mid-August 2024. The Council listed the various contacts with Mrs X over the previous year, including conversations about finances and finding a home for Mrs Y. The Council said it wanted to encourage Mrs X to engage in the financial assessment process and that without this engagement, Mrs Y would continue to be classed as a self-funded resident.
39. Mrs X then brought her complaint to us. She later confirmed that Mrs Y moved to another home before her death. Mrs X’s appeal for full CHC funding was successful, so there was no effect on Mrs Y’s finances.

Analysis

Background information

40. Where someone has died, we will not normally seek a remedy for injustice caused to that person in the same way as we might for someone who is still living. We would not expect a public or private body to make a payment to someone’s estate. Therefore, if the impact of fault was on someone who has died, we will not recommend an organisation make a payment in recognition of any injustice caused. This is because the person who experienced the injustice cannot benefit from such a payment.
41. However, if we consider the person who has complained to us has been adversely affected, we may make a recommendation to remedy their own distress.

Initial best interest decision

42. Four days before the first BID document was completed in August 2023, Officer A held a telephone conversation with Mrs X about what Mrs Y’s likely preferences for ongoing care would have been. Records show that Mrs X and the Council both agreed a step-down placement at a care home would be the best way forward. On this basis, I am satisfied there was no fault on the Council’s part in involving Mrs X in the initial BID for Mrs Y, when it was agreed for a step-down placement to be found.

Subsequent care arrangements

43. The Council provided evidence of an extensive search for a care home for Mrs Y and of updates to Mrs X about this. Officer A explained it was proving difficult to find a home.
44. Although the Council did not give a choice of care homes, I am satisfied it carried out a thorough search for a placement for Mrs Y. However, as per paragraphs 14 and 15, regulations say there must be a choice of more than one care home option. This was not the case and in the circumstances of this complaint leads me to a finding of service failure on the Council’s part. I am satisfied that at this point in time, however, there was no injustice to Mrs X or Mrs Y.
45. Evidence shows that no formal Care Act assessment was started on Mrs Y’s case until 9 November 2023. This was seven weeks after she had moved into Home A and a week after her care had become chargeable. In response to my enquiries, the Council said visits about this to Mrs Y were completed before this, but Officer A had been away from the office and it had not been appropriate to re-allocate the case. Evidence shows Officer A first visited Mrs Y at Home A on 28 October 2023, 5 weeks after she had moved in and 5 days before care was due to become chargeable.
46. The Care & Support Statutory Guidance states an assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs. In the circumstances of this complaint, I am satisfied the Council was too slow to act in beginning the assessment process, especially given that it had been the decision maker in moving Mrs Y to a stepdown placement and had been involved in the case since before August 2023. This lack of decisive action was fault. It caused avoidable distress and uncertainty to Mrs X. I have made a recommendation below to remedy this injustice. I am satisfied this did not cause any injustice to Mrs Y.
47. The subsequent care and support plan was started at the end of December 2023, 14 weeks after Mrs X had moved to Home A. The Council advised this was not completed until mid-February 2024 due to ongoing discussions with Mrs X about Mrs Y’s finances. The care and support plan should have been started much earlier than this. The Council was too slow to begin the process and allowed things to drift. This was fault. It caused Mrs X avoidable distress and frustration. I have made a recommendation below to remedy this injustice. I am satisfied this did not cause an injustice to Mrs Y.

Mrs X’s involvement with financial matters and costs of Home A

48. The Council was aware as early as August 2023 that Mrs X held LPA for Mrs Y’s finances and property. In response to my enquiries, the Council said it had not discussed Home A’s fees with Mrs X before Mrs Y became a self-funder on 2 November 2023.
49. Evidence shows Officer A advised Mrs X she was beginning the CHC funding application process at the end of October 2023. However, the Council has provided no evidence of it advising Mrs X of the costs of the home it had placed Mrs Y in or any discussions about Mrs Y’s finances specifically in relation to Home A in 2023. The Council was unable to confirm the date of it advising Mrs X of Home A’s costs.
50. Anecdotal evidence provided by Mrs X notes a telephone conversation on 20 December 2023 where the Council advised her of Home A’s weekly charge. Mrs X says this was only after she repeatedly asked what the costs were.
51. I acknowledge that Mrs X was Mrs Y’s LPA for finances. However, the Council was the decision maker in placing her in Home A. Given this, it should have discussed costs with Mrs X when a placement at Home A was agreed and it knew of the weekly fee cost in mid-September 2023. Not doing so was fault. It caused Mrs X avoidable distress, frustration and uncertainty. I have made a recommendation below to remedy this injustice. I am satisfied this did not cause any ongoing injustice to Mrs Y as fees were eventually paid via CHC funding.

Financial assessment

52. In response to my enquiries, the Council said a financial assessment had originally been completed for Mrs Y in June 2023. This identified her as a self-funder. The Council also said Mrs X had not provided necessary information when it had begun a new assessment.
53. Despite this, I consider the Council was too slow to begin the financial assessment process. Evidence shows it being mentioned in October 2023’s mental capacity assessment notes. However, evidence also suggests the financial assessment process was not begun until late in December 2023 or in January 2024. I am satisfied the Council should have begun the process much earlier and before Mrs X’s care became chargeable on 2 November 2023. This was fault. However, I consider there was limited injustice to Mrs X as when the process began, she was initially reluctant to provide required information. I am satisfied the delay did not cause any injustice to Mrs Y.

Communication

54. I acknowledge there were many interactions between Mrs X and the Council. I also acknowledge evidence shows documented contact became more frequent when Officer B took over Mrs Y’s case. There were, however, gaps in communication.
55. Officer A told Mrs X in October 2023 she would update her after she had visited Mrs Y to discuss the visit and the CHC application process. There is no evidence of this happening.
56. Mrs X was at one point told chargeable care was from the date of the CHC funding meeting in December 2023 to later be told it was from the end of the six-week stepdown period at the beginning of November 2023.
57. Mrs X’s care cost concerns addressed to Officer A in February 2024 were forwarded to managers but then not directly responded to. A response was only later sent to her MP when Mrs X had involved them.
58. This is enough to satisfy me communication was not as timely or complete as it should have been which I am satisfied was fault. This caused Mrs X avoidable distress, frustration and uncertainty. I have made a recommendation below to remedy this injustice. I am satisfied there was no injustice to Mrs Y.

The Council’s responses to concerns raised about Mrs Y’s care

59. Evidence shows Mrs X first mentioned concerns about the lack of culturally appropriate foods Mrs Y was being given early in December 2023. Notes show Officer A contacted another care home to see if they could support Mrs Y. An action from the CHC assessment meeting soon after this was for Home A’s nurse to speak to her manager. There is no evidence of either of these actions being followed up by the Council. This is fault. It caused Mrs X distress, uncertainty and frustration. I have made a recommendation below to remedy this injustice. Any injustice to Mrs Y cannot now be remedied.
60. Subsequent concerns raised by Mrs X were discussed with Officer B. In the summer of 2024, another BID was made which resulted in the decision Mrs Y’s needs could be best met at another care home. I am therefore satisfied the concerns were discussed and acted on as decided by Officer B and find no fault on the part of the Council here.

Racism

61. Mrs X felt that when a social worker of a similar heritage to the family took over Mrs Y’s case, Officer B, understanding of Mrs Y’s needs and culture increased. She felt this pointed to racism in how the case had previously been handled.
62. I acknowledge Mrs X felt communication and decisive action improved when Officer B was moved to the case. However, I have reviewed all of the evidence presented by both Mrs X and the Council. I am satisfied that regardless of any other fault, there is no evidence which points to racism on the Council’s part. I therefore find no fault in the Council’s actions.

The Council’s response

63. In response to my enquiries, the Council said lessons had been learnt regarding the timeliness of financial assessments and that these were now triggered when someone moved into a care home. It also said this would ensure the cost of the placement was then shared at the earliest possible time.
64. I am satisfied this is an appropriate service improvement on the basis the Council provides us with evidence of the process change.

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Agreed action

65. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Mrs X for the identified injustice;
• make a symbolic payment to Mrs X of £250 to reflect the distress, frustration and uncertainty caused by the identified injustice; and
• provide evidence of its improved financial procedures related to assessment and sharing of information about care home costs.
66. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
67. Payments made are in line with the Ombudsman’s guidance on remedies.
68. The Council should provide us with evidence it has complied with the above actions.

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Final decision

69. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

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Investigator's decision on behalf of the Ombudsman