Summary: Mrs X complained about the way the Council decided to discharge her mother, Mrs Y, to a care home without considering whether Mrs Y could return home with a care package. Mrs X said she was ignored and not given any advice or help while she was applying for deputyship which took two years. Mrs X says the Council are now chasing her for £90,000 of outstanding care home fees. We have found fault in the Councils actions for failing to consider Mrs Y returning home and for the information it provided Mrs X about the costs of a care home and applying for deputyship. The Council agrees to apologise to Mrs X, complete service improvements and pay Mrs X a financial payment.

The complaint

1. Mrs X complained about the way the Council decided to discharge her mother, Mrs Y, to a care home without considering whether Mrs Y could return home with a care package. Mrs X said she was ignored and not given any advice or help while she was applying for deputyship which took two years.
2. Mrs X says the Council are now chasing her for £90,000 of outstanding care home fees.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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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How I considered this complaint

5. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
6. Mrs X and the Council were invited to comment on my draft decision. I have considered any comments before making a final decision.

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What I found

7. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). 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.

Reviews

8. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

Mental Capacity Act

9. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.

Charging for permanent residential care

10. 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, or a carer’s 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.
11. 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.
12. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.

What happened

13. The Council completed a Care Act Preliminary assessment in March 2022 following Mrs X reporting she was concerned about Mrs Y. Mrs X reported the memory service had advised Mrs Y needed some urgent help.
14. Mrs Y was admitted to hospital the following day and the Council completed a Care Act Proportionate assessment in early April 2022. The notes from this assessment say Mrs Y had had a formal capacity assessment completed and the view was that Mrs Y did not have capacity to make a decision regarding her discharge. The notes say the Council spoke to Mrs X who advised she agreed that Mrs Y could not make a decision about her discharge from hospital. Mrs X told the Council the family would like to be involved in any decision taken about Mrs Y’s future care.
15. The notes from the assessment say the Council considered several options for Mrs Y following her discharge from hospital but the assessor was of the view that Mrs Y could not return home with a package of care. This was because there was a significant risk Mrs Y would self-neglect. The assessment concluded Mrs Y should have care and support 24 hours a day and would benefit from being in a residential care home that supports people with Alzheimer’s.
16. The Council emailed Mrs X in early April 2022 and sent her copies of leaflets which showed who would be eligible to pay for care and gave other financial information.
17. Mrs X emailed the Council in mid-April 2022 to query what costs Mrs Y would have to cover. Mrs X also said the family had decided which care home Mrs Y should be placed in. The Council responded the same day to say from the information Mrs X provided Mrs Y would be a self-funder and would likely be asked to pay for all her care costs. The Council asked Mrs X if anyone had legal authority to support Mrs Y with her financial matters.
18. Mrs Y moved into a residential care home in April 2022.
19. The Council emailed Mrs X in late April 2022 and said it had confirmed Mrs Y would be funding her own care, but the family did not yet have legal authority to access funds. The Council said it would pay for Mrs Y’s care home fees and then this would be recharged to the family once they had legal authority to deal with Mrs Y’s financial matters.
20. Mrs X emailed the Council in late April 2022 to ask for help completing the deputyship forms and attendance allowance documentation. Mrs X asked for a copy of the capacity assessment to include with the deputyship forms. The Council responded to say it would provide the documents or offered to complete as much of the forms as it could for Mrs X.
21. Mrs X asked for the Council to forward on the documents she needed and chased the Council for these in late May 2022.
22. The Council emailed Mrs X in late May 2022 to confirm the costs of Mrs Y’s residential care would be £695 per week and provided the details of the capacity assessment. The Council also confirmed Mrs Y’s entitlement to Attendance Allowance should have resumed and provided the details of the unit which dealt with this benefit.
23. The Council reviewed Mrs Y’s care assessment in early May 2023. Mrs X was part of the review which concluded Mrs Y still required 24-hour care.
24. The Council requested an update on the progress Mrs X had made about gaining deputyship in July 2023.
25. Mrs X told the Council the application for deputyship was progressing in April 2024 and asked for a financial assessment. The Council told Mrs X it would send out the relevant forms.
26. The Council completed a review in mid-April 2024. The notes from the review say when the Council asked Mrs X about the progress with the deputyship application, she said she felt let down by the Council. Mrs X said she had not received any support with gaining it. The Council sent out the financial assessment forms.
27. Mrs X complained to the Council in mid-April 2024 and said she was unhappy with the way the Council had dealt with Mrs Y after her being discharged from hospital. Mrs X said she had not been allowed to care for Mrs Y at home, and she felt no checks had been completed about Mrs Y’s finances. Mrs X also said the Council had not offered any help to get a deputyship order.
28. The social worker assigned to Mrs Y sent an email to the finance team in late April 2024 requesting help for Mrs X. The finance team responded to the questions Mrs X had raised in early May. The Council completed an interim financial assessment.
29. The Council completed a further review of Mrs Y’s care needs in October 2024 which again Mrs X was involved in. The review notes again that Mrs Y needed permanent residential care.
30. The Council issued a complaint response in late October 2024 and said its records showed that Mrs Y could not be supported at home and says everyone was in agreement about that. The Council acknowledged this could have been discussed with Mrs X further at the time the decision was being made. The Council also said a service to help with gaining deputyship was not available at the time Mrs X was requesting it and apologised for this. The Council said it now offers this kind of support.
31. Mrs Y sadly died in November 2024. Shortly after the Council sent a request for the payment of the outstanding fees. Mrs X raised a further complaint in December 2024.
32. The Council sent a reminder for the outstanding charges on Christmas Eve. Mrs X raised a further complaint to the Council about the timing of the reminder.
33. The Council emailed Mrs X in early January 2025 to apologise for the timing of the reminder and issued a response to Mrs X’s December complaint in late January 2025.
34. The Council’s complaint response apologised again for failing to explore all options with the family and explained the actions it had taken following reviewing the complaint to learn from it.

Analysis

Decision on care

35. Mrs X says the Council told her that Mrs Y could not return home with a package of care. Mrs X says the Council said that Mrs Y had to be placed in a residential care home. The notes from the time show why the Council made this decision. However, the Council has acknowledged it should have discussed all options with Mrs X and her family when making this decision. The legislation says the Council should consult and take views of the person who is involved in the care or is interested in a persons’ welfare. Not doing so is fault.
36. I understand Mrs X says she alongside her family could have provided the care Mrs Y needed at home had they been consulted. However, I cannot say this would have happened given the council’s assessment that a residential placement was the best option for Mrs Y. As such, a residential placement may have always been the outcome.

Charging

37. I have not been able to see the Council told Mrs X of the costs involved in Mrs Y’s residential care home placement before she decided which placement to pick. This is fault.
38. However, the Council did tell Mrs X that Mrs Y was likely to be charged for her care prior to her moving into the residential care home and did advise Mrs X of the costs within a relatively short timeframe.
39. The Council also kept Mrs X up to date with the level of fees which were outstanding while it waited for her to secure deputyship.
40. Therefore, the injustice suffered is limited as Mrs X was aware of the charges and how the amount was building.
41. I understand Mrs X is unhappy with the Council’s actions in trying to claim the costs following Mrs Y's death. In particular, the timing of requests and reminders. I understand the Council has apologised for the timing of some of the reminders.

Deputyship

42. Mrs X asked for help from the Council to complete the forms to apply for deputyship in April 2022.The Council offered to help complete the forms as much as it could at that time.
43. I understand Mrs X instructed a lawyer to help put the deputyship in place.
44. The Council has acknowledged help could have been provided to Mrs X while she tried to apply for deputyship. The Council initially said in its response to my enquiries that this service was not available at the time Mrs X was applying. However, it has now confirmed help was available and Mrs X could have been referred to this help. This is fault.
45. Mrs X asked for help with the deputyship process on several occasions and was not told there may be help available. I understand Mrs X instructed a lawyer to help with the deputyship application and the process of obtaining this was long and difficult. I cannot say Mrs X would not have had to instruct the lawyer even if the Council had offered help and as such cannot say Mrs x would not have incurred the costs associated with doing so.
46. The Council apologised for not telling Mrs X about the help available and while I welcome this in my view, this does not go far enough to remedy the injustice Mrs X has suffered. Mrs X will have been left with the feeling that had the Council offered her help with the deputyship order, it may have been completed sooner and she may not have incurred the costs she did to complete it.

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Action

47. Within four weeks of a final decision, the Council should:

• Write to Mrs X to further apologise for faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• In writing, remind officers to ensure the views of persons who are interested in the care of an individual are considered and recorded when completing assessments.
• Pay Mrs X £400 to recognize the uncertainty caused by failing to tell her about help available in applying for a deputyship order.

48. The Council should provide us with evidence it has complied with the above actions.

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Decision

49. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman