Summary: We will not investigate this complaint about charging for adult residential care. The Council delayed confirming the care charges and offered a repayment plan for the debt. The complainant accepted the care knowing they might have to pay for it, and the charges are rightly due. The offer of a repayment plan acknowledges the impact of the delay. There is no significant injustice to justify an investigation. It is unlikely the Ombudsman would add to the Council’s investigation or reach a different outcome.

The complaint

1. Mr C says the Council did not follow the correct process to decide about his relative, Ms D’s, care and charges for that care. Mr C says he did not find out about charges due for Ms D’s care until after she had died. This came as a shock and Mr C says there is little funds in Ms D’s estate to pay the debt. The Council also took a long time to respond to the complaint which increased Mr C’s frustration.

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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 fault has not caused significant enough injustice to the person who complained to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. 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)

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How I considered this complaint

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

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My assessment

6. The Council’s duty under the Care Act 2014 is to assess the care and support needs of adults in its area who it knows may need support. If the Council assesses the person has eligible needs, then it must meet those needs. The Council must complete a financial assessment to decide if the person must pay any or all the care costs. There are no timescales set out for the completion of the care and support assessment or the financial assessment.
7. The Ombudsman expects, based on the wording of the statutory guidance supporting the Care Act, that councils complete financial assessments before care services start. This would enable people to know how much they must pay, if anything, before the care starts. However, in practice this rarely happens.
8. Mr C says Ms D did not have capacity to decide about her care arrangements and there should have been a best interests meeting. Under the Mental Capacity Act 2005 people are deemed to have capacity to make decisions unless it is clear otherwise. A particular diagnosis, such as dementia, is not evidence that someone lacks capacity to make a specific decision at a specific time. However, even if Ms D did not have capacity to decide about her care, I have seen no evidence Mr C challenged that Ms D needed to be in a residential care home to meet her needs, so it appears accepted this was in her best interests. If not, the proper route to challenge Ms D’s capacity and to decide on where she should live would have been to the Court of Protection.
9. Councils have a duty to provide information about the charging arrangements for care and support. The Council told Mr C promptly when Ms D moved to residential care that it was chargeable, and a financial assessment would decide how much Ms D would pay. Mr C’s wife is joint financial attorney, Mrs C signed and returned the financial assessment form. Mrs C asked the Council to correspond with her e-mail address and that is what the Council did. If Mr & Mrs C did not receive the contact, that is not evidence of fault by the Council.
10. So, although Mr C did not know the costs when the care package started, Mr C accepted the care package on that basis knowing Ms D may need to pay some or all the costs. The Council delayed completing the financial assessment. It sent the outcome five months after Ms D moved to residential care and backdated the care charges to the date it first told Mr C the care was chargeable. The delay is fault but does not mean the Council cannot charge for the care it provided and which Mr C knew Ms D may have to pay for.
11. I cannot see any fault in the Council’s assessment of what Ms D must pay. It is based on her income, disclosed by Mrs C, and it leaves Ms D with more than the minimum personal expenses allowance for someone in residential care. So, I cannot challenge the outcome even though Mr C disagrees with it.
12. The Council offered a repayment plan to acknowledge the delay in sending the outcome of the financial assessment. This is sufficient action in response to the delay.
13. Mr C is also unhappy with the way the Council dealt with his complaint. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.

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Final decision

14. We will not investigate Mr C’s complaint. Although there was fault in delaying completing the financial assessment and confirming how much Ms D must pay for her care, this does not cause a significant enough injustice to justify an Ombudsman investigation. The care charges are rightly due for care Ms D received and has been assessed as able to contribute towards. Mr C’s shock of discovering the charges is not sufficient to justify investigation. The Council sent the relevant information to the e-mail address Mrs C gave it and cannot be held responsible for Mr & Mrs C not seeing it. In any event Mrs C knew she had completed and returned the financial assessment form, and if Mr & Mrs C were worried they had not received the outcome, they could have chased the Council for the information.

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Investigator's decision on behalf of the Ombudsman