Summary: We will not investigate Mrs X’s complaint about delay in the Council notifying her of her mother’s care charge arrears. This is because the likely fault has not caused significant injustice.

The complaint

1. Mrs X complains the Council delayed in notifying her of her mother’s care charge arrears for over two years.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Mrs X’s late mother, Mrs Z, had care and support needs. In December 2021, Mrs Z was placed in a care home on a short-term basis. The Council confirmed the placement was not charged for during this period. In March 2022, her placement in a care home was made long term and the placement became chargeable.
6. In March 2022, Mrs X also signed a financial declaration which clearly set out that charges would start from the day the care services commenced and that a financial assessment would be completed to determine the resident’s contributions. The Council then sent Mrs X a copy of Mrs Z’s financial assessment. This letter detailed how much Mrs Z had been assessed as needing to contribute towards her care and support charges.
7. In March 2024, the Council sent Mrs X a letter outlining the arrears outstanding on Mrs Z’s residential care account. This showed that Mrs Z had not paid any of her charges since her placement became chargeable.
8. The Council said that invoices were sent to Mrs Z four weekly to the care home. Mrs X said her mother had no capacity to manage her finances and the invoices should instead have been sent to her. The Council said Mrs Z was assessed as having capacity.
9. If we were to investigate, it is likely we would find fault. This is because the Council failed to complete a mental capacity assessment to determine if Mrs Z had mental capacity to manage her finances. While the Council did complete a mental capacity assessment in March 2022, this was related to whether Mrs Z had capacity to make decisions about her care needs.
10. Capacity assessments are time and decision specific. This means even though Mrs Z may have had capacity to make decisions about her care and support, this does not mean she had capacity to manage her finances. The Council should have recognised a mental capacity assessment was also required to determine if Mrs Z had capacity to manage her finances.
11. Further, having reviewed the mental capacity assessment that was completed in March 2022, I am not satisfied the assessment was completed properly. The assessor has not outlined why they are satisfied Mrs Z had capacity, only that they were satisfied Mrs Z could understand what was being discussed and that she appeared able to weigh up the information. It is good practice for capacity assessments to reflect the discussions that were held and how the person being assessed was able to demonstrate they understood the topics discussed, could retain the information long enough, how they weighed up the information to form decisions, and how they communicated. The Council’s 2022 assessment does not show this.
12. However, while there is likely to be fault with the Council’s failure to complete a mental capacity assessment to determine Mrs Z’s capacity to manage her finances, I don’t consider this has caused significant injustice which warrants an investigation. This is because if the Council had completed a capacity assessment and determined Mrs Z lacked capacity to manage her finances, this would likely have led to the invoices being sent to Mrs X instead. Therefore, the likely fault simply led, on balance, to a delay in sending the invoices to the appropriate person.
13. This doesn’t mean Mrs X’s assessed charges are not payable as, by law, the Council is allowed to charge for care and support, and it is clear from the evidence the Council had appropriately completed a financial assessment to determine Mrs Z’s contributions. Instead, it would have been Mrs X’s, or another appropriate financial representative’s responsibility to pay Mrs Z’s assessed charges for the whole time she remained in the care home.
14. The Council is only pursing Mrs Z’s estate for the money that should have been paid between 2022 and 2024. Therefore, the estate is in the exact same position it would have been in if the likely fault had not happened.
15. Further, the evidence shows Mrs X was made aware of her mother’s assessed contributions in March 2022 and that Mrs Z’s placement would be chargeable. Mrs X says they were led to believe the placement was being funded by continuing health care due to not receiving any invoices. However, this was an assumption by Mrs X. It was reasonable to expect Mrs X to have contacted the Council to ask about the invoices or charges if there were any concerns regarding the lack of communication following the financial assessment.
16. I acknowledge it was distressing for Mrs X to only receive the invoices for the care charges two years after the placement began. However, this is not significant enough to warrant an investigation.

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Final decision

17. We will not investigate Mrs X’s complaint because the likely fault has not caused significant injustice.

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Investigator's decision on behalf of the Ombudsman