Summary: Ms A complained that the Council delayed in moving her mother Ms X to appropriate alternative accommodation and as such has caused personal financial loss to Ms X. We find there was no fault on the part of the Council. No-one had legal authority over Ms X’s finances and no move could be achieved until deputyship was resolved.

The complaint

1. Ms A says the Council has prevented her mother Ms X from moving out of a care home placement despite being no longer assessed as requiring residential care. She says as a result the Council is incurring more costs for her mother, who funds her own care. In addition she complains the Council has refused to share information with her about her mother.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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

4. I considered evidence provided by Ms A and the Council as well as relevant law, policy and guidance. I spoke to Ms A.
5. Ms A and the Council had an opportunity to comment on my draft decision and I considered their comments before making my final decision.

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What I found

Relevant law and guidance – Mental capacity and DoLS

6. 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.
7. 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. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.
8. The Court of Protection may need to become involved in difficult cases or cases where there is disagreement which cannot be resolved in any other way. The Court of Protection:

• decides whether a person has capacity to make a particular decision for themselves;
• makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;
• appoints deputies to make decisions for people lacking capacity to make those decisions;
• decides whether a Lasting Power of Attorney or Enduring Power of Attorney is valid; and
• removes deputies or attorneys who fail to carry out their duties.

9. If there is a need for continuing decision-making powers and there is no relevant EPA or LPA, the Court of Protection may appoint a deputy to make decisions for a person. It will also say what decisions the deputy has the authority to make on the person’s behalf.
10. The Deprivation of Liberty Safeguards 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. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful.

Relevant law and guidance - Charging for permanent residential care

11. 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.
12. 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.
13. 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

14. Ms X was admitted to hospital in October 2023 when she was having hallucinations which her daughter Ms A says were due to a UTI and a life-long mental health condition which caused delusions.
15. In January 2024 Ms X was assessed as lacking capacity to make decisions about her future care and her finances. No-one had power of attorney or deputyship in respect of her health and welfare or finances. A Best Interest decision was made at the time that agreed it would be in Ms X’s best interest “to be discharged into a residential placement so that further care management can take place to ascertain whether [she] would like to remain in a residential placement or consider a less restrictive option such as Sheltered Housing or Extra Care Housing since [she] has advised she would like to have her own flat”.
16. Ms X was discharged from hospital into a residential care home in March 2024. Ms A says the care home staff believed she had capacity to make decisions about her care and finances, but I have not seen any evidence this was so. Ms X had initially objected to a care placement but on the day was content to be taken there. Ms A says this was supposed to be a 6-week assessment stay free of charge but Ms X never left. Ms X was assessed as able to pay for her care as she owned her own home and it was believed it was possible she may have a second property. She was therefore above the upper threshold amount for paying for her own care. Ms X was adamant to social workers that she had sold her home but there is no evidence this was so. She regularly expressed views about where she wanted to be discharged to but these were often in conflict with the views of her family.
17. Ms X’s care placement is funded by the Council on an interim loan until authority over her finances is resolved. Ms A says the Council told her initially that it had control over Ms X’s finances
18. In May 2024 Ms A complained to the Council about the way it had withheld information about Ms X, made untrue allegations about the family bullying Ms X, been unclear about Ms X’s capacity and failed to assess her as requiring detention under the Mental Health Act, which would have resulted in free care.
19. The Council responded. It explained that it had not had consent to share Ms X’s information with her family (Ms A says her mother later insisted she wanted to share information with her daughter).. It said there was no fault in the way the AMHP (Approved Mental Health Professional) had assessed Ms X and therefore no reason to doubt their view that she should not be detained under the Mental Health Act. It said staff at the care home had witnessed family members trying to influence Ms X’s decision making. It confirmed that the Council did not have control over Ms X’s finances but was paying for her care on an interim loan basis which would need to be repaid.
20. The Council’s records show that although a Best Interest meeting in May had decided to apply for a deputy to manage Ms X’s finances, there was a delay in proceeding because it was not possible to access Ms X’s property to find out the relevant financial information (Ms A disputes this). Although there had been general agreement, subsequently Ms A objected to the appointment of a deputy, although she says the implications of doing so were not explained to her. Once she withdrew her objection in September the matter proceeded.
21. The Council explained to the family at the Best Interest meeting in September that Ms A had already accrued a care debt which would deplete her savings, and it was in her “financial interest to move back home … to reduce her cost of care until the property can be sold and she move to Wales. If she was to go home then she would be funded by Wiltshire Council as the property would no longer be viewed as an asset. Remaining in (the care home) is only an option to her as she is refusing to leave and is self-funding her placement using (her house) as collateral.” However, there was considerable potential harm to Ms X’s mental health if she was forced to move back home against her wishes and it was agreed she would stay in the care home until the matter of the Deputyship was resolved.
22. Ms A made a further complaint about the same issues to the Council in October.
23. In a Best Interest meeting in December, it was noted that Ms X no longer had needs which had to be met in a residential setting but could be discharged. The recommendation was that she had her needs met within the community with a small package of care for welfare checks. She continued to have paranoid delusions.
24. It was emphasised that repayment of the loan was not negotiable and if family disputed it, they would become responsible for funding her care. The meeting also noted that Ms X now expressed a consistent interest in moving to Wales to buy a new property. It was stated that could only be achieved once a deputy was appointed by the Courts, her current property was sold, the interim loan repaid and a new property purchased. Although it was open to Ms X to return to her existing property, it was believed that would be detrimental to her mental health.
25. The Council’s legal team set in motion the process to apply for panel deputy in the absence of any other person able to act in that capacity. An application was sent to the Court of Protection in December.
26. Ms A complained to the Ombudsman. She complained that Ms X had been charged unwarranted amounts of money by the Council for a placement she had been forced into. She said it was clear from the middle of 2024 that Ms X was able to leave the home, but the Council had continued to ‘loan’ her the money to remain there. She was concerned that her mother’s wish to move to Wales and buy a property there was being jeopardised by the waste of her assets on a care home placement.
27. The Council says its legal team is currently awaiting documents to enable it to proceed.

Analysis

28. There was no fault in the way the Council arranged a placement for Ms X on discharge from hospital. Ms X lacked capacity to make her own decisions and was unable to manage independently.
29. It was not fault for the Council not to share information it did not have consent to share.
30. The Council does not have (and has never had), as Ms A alleges, control over Ms X’s finances nor has it forced her to agree to a loan. Ms X had finances above the threshold amount which enabled her to fund her own care. Subsequently the value of her home, until it can be sold, is offsetting the loan costs. The Council has explained that until there is a deputy with legal authority over Ms X’s finances it is not possible to move forward. Ms X has been opposed to returning to her own home (which she believes has been sold) and it was judged to be a potential risk to her mental health to enforce such a move even though it would save her money.
31. The Council made an application for deputyship in December. It advised Ms X’s family at the item that the process would be slow, but the timescales are not within its gift.

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Decision

32. I have now completed this investigation as I find no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman