Summary: Mrs X complained about the Council’s decision to classify her late father’s care home placement as permanent, rather than temporary. She also complained the Council failed to explain the implications of signing a deferred payment agreement, and it gave misleading advice about it. We do not find the Council was at fault.

The complaint

1. Mrs X complained about the Council’s decision to classify her late father’s (Mr Y) care home placement as permanent, rather than temporary. She also complained the Council failed to explain the implications of signing a deferred payment agreement (DPA) and it gave misleading advice about it.
2. Mrs X says the matter has caused distress and upset.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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(1), as amended)

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How I considered this complaint

6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Charging for permanent residential care

8. 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.
9. 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.

Charging for temporary residential care

10. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period, such as respite care, or there is doubt a permanent admission is required. The person’s stay should be unlikely to exceed 52 weeks, or in exceptional circumstances, unlikely to substantially exceed 52 weeks. A decision to treat a person as a temporary resident must be agreed with the person and/or their representative and written into their care plan.
11. A council can choose whether to charge a person where it is arranging to meet their needs. In the case of a short-term resident in a care home, the council has discretion to assess and charge as if the person were having their needs met other than by providing accommodation in a care home. Once a council has decided to charge a person, and it has been agreed they are a temporary resident, it must complete the financial assessment in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance)

Deferred payment agreement

12. A deferred payment agreement (DPA) is an arrangement with a council that enables a person to use the value of their home to pay for some of their care costs.

Mental capacity assessment

13. Councils must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.

Best interest decision making

14. A key principle of the Mental Capacity Act 2005 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.

Deprivation of Liberty Safeguards

15. The Deprivation of Liberty Safeguards (DoLS) provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative.

Lasting Power of Attorney

16. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.

What happened

17. This chronology provides an overview of key events in this case and does not detail everything that happened.
18. Mr Y went into hospital and was discharged home with a care package in July 2024. The Council was not involved in this process.
19. Mr Y went back into hospital after his family raised concerns that he was not safe at home.
20. A social worker called Mrs X in mid-August to discuss Mr Y’s discharge from hospital and his care and support needs. Mrs X has LPA for Mr Y’s health and welfare and his property and financial affairs. Mrs X said she wanted Mr Y to go to the same care home that her mother was a resident at. The social worker said Mr Y would undergo a financial assessment so the Council could determine his care contributions.
21. The social worker visited Mr Y and completed his assessment and care and support plan. This said Mr Y had eligible care and support needs, his confusion and disorientation had got worse, and that he needed a permanent residential care placement.
22. The social worker also completed a mental capacity assessment for Mr Y. They decided he did not have the capacity to make decisions about his care and support needs. Mrs X and her sister (Ms Z) would continue to act in Mr Y’s best interests.
23. The social worker spoke to Mrs X about discharge. Mrs X said Mr Y did not have a formal diagnosis. The social worker said Mr Y was consistently confused and disorientated, but that Mrs X should speak to Mr Y’s GP for a specialist Alzheimer's assessment.
24. Mr X became a resident at the care home in late August.
25. A Council officer spoke with Mrs X about completing a DPA. The officer provided Mrs X with information about the process. Mrs X said she did not want to complete the DPA form yet as Mr Y did not have a formal diagnosis and she was hopeful he could return home. The officer told Mrs X that if Mr Y returned home within the first 12 months, the placement would be reassessed as a temporary stay rather than a permanent one.
26. The Council sent Mrs X information about the DPA process.
27. Mrs X partly completed the DPA form and returned it to the Council. She said she would provide further information when she had confirmation that Mr Y would not be returning home.
28. A finance officer contacted the social worker in September. They said Mrs X provided information which suggested Mr Y could return home. They asked for clarification as DPAs are only for people who are in permanent residential care. The social worker responded and said the plan was for the residential placement to be permanent. They said it was unsafe for Mr Y to return home because of his cognitive difficulties.
29. The Council sent another letter to Mrs X and asked her for further information about the DPA. Mrs X called the Council and asked for some help in completing the form. The Council answered her questions. Mrs X returned the DPA form in late September.
30. Mrs X and Ms Z contacted the Council in October about Mr Y leaving the care home. They said Mr Y was recovering and he was asking to leave the care home every day.
31. A doctor completed a mental health assessment for Mr Y in mid-October. This said Mr Y had a limited understanding of his environment and a poor memory. Mr Y seemed settled at the care home, and it would be positive for him to stay there. The doctor said he did not see any negative consequences of depriving Mr Y of his liberty and ensuring he remained at the care home.
32. The social worker contacted the care home to discuss Mrs X’s and Ms Z’s concerns. The care home said it had no concerns about meeting Mr Y’s needs.
33. The Council spoke to Ms Z. Ms Z said the family felt Mr Y could go home with 24-hour care from a care agency and the care home placement was expensive. The Council explained when the social worker completed the assessment it was for Mr Y to enter the care home for long term care. Ms Z and Mrs X had chosen the care home placement and were fully involved in the process. It said if Mr Y returned home it would place a risk to his safety and it would be difficult for a single carer to manage his needs. The cost of 24-hour care at home was also likely to be higher than the care home placement.
34. Mrs X complained to the Council in November. She said it had classed Mr Y’s care home placement as permanent, even though he did not have a formal diagnosis. She also said it gave misleading advice about signing a DPA.
35. The Council responded to the complaint in December. It said Mr Y’s condition was not deemed to be temporary and his ongoing needs required permanent, and not temporary, support. The doctor completed a mental health assessment, which showed Mr Y’s cognition had progressed to a stage where his memory was poor and he was confused. It said it answered Mrs X’s questions about the DPA, and it also told her to get independent financial advice. Finally, it told Mrs X she could withdraw from the DPA process if she did not want to proceed.
36. Mr Y has now sadly passed away.

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Analysis

37. The social worker spoke to Mrs X to understand Mr Y’s needs during the assessment process. They also visited Mr Y and spoke to hospital staff. They decided Mr Y had eligible care and support needs which should be met in a 24-hour permanent residential care placement. This is set out in Mr Y’s care and support plan.
38. While Mr Y did not have a formal diagnosis, the social worker decided that because of his presenting needs, a permanent care home was appropriate for him. That was a decision the social worker was entitled to make, and it was their professional judgement. A medical diagnosis is not the sole or determining element in establishing the type or duration of a placement. There is no fault in the social worker’s assessment of Mr Y’s care and support needs. Therefore, we cannot question the outcome, even if Mrs X strongly disagrees with it.
39. The Council answered Mrs X’s questions about the DPA process. The letters it sent to her explained the process and encouraged her to get independent financial advice. I do not accept the Council gave misleading advice or that it failed to tell Mrs X about the implications of signing the DPA. The Council was not at fault.

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Decision

40. I have completed my investigation. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman