Summary: Ms A complained about the care provided to her father, and the related costs, which she said were unnecessary. Based on current evidence we consider the Council is at fault for its communication with Ms A. I have recommended it apologise to Ms A. I did not find fault in relation to the care costs complained of.

The complaint

1. Ms A complains the Council is pursuing payment of one to one support fees for her father, which she never agreed he needed. She says the Council has allowed one to one support to be provided simply to increase the costs because her father is liable to pay for his care.
2. Ms A says this has led to disproportionately large bills which the Council insist must be paid.

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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 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)
4. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the relevant available evidence and decide what was more likely to have happened.
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(i), as amended)

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How I considered this complaint

6. I considered evidence provided by Ms A and the Council as well as relevant law, policy and guidance.
7. Ms A and the Council have provided comments on a draft decision. I have considered all comments received before making this final decision.

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What I found

Law and guidance

Mental Capacity Act

8. 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.
9. 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. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.

Charging for permanent residential care

10. The Care Act 2014 (section 14 and 17) provides a legal framework for charging 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. The financial limit, known as the ‘upper capital limit’, exists for the purposes of 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.

Background

12. Ms A cared for her father, Mr X, at his home, following a diagnosis of dementia about ten years prior.
13. In October 2023, Ms A was taken into hospital, so her father was taken to a care home for emergency respite care, initially for two weeks. It was agreed this stay would be paid for privately.
14. Mr X lashed out at staff, and the home asked the Council to fund one to one care for a week while he settled in, as they said this was needed to manage his behaviour. The Council agreed to this.
15. Following reviews, it was agreed Mr X would need to stay on a long term basis as Ms A could not provide the support he needed at home.
16. The home agreed to this but reiterated it needed funding for one to one support in order to manage Mr X’s behaviours. This was reviewed regularly over the following weeks.
17. In early November 2023, the Council completed a financial assessment for Mr X and told Ms A what the weekly costs would be. This did not include the cost of one to one support.
18. The home worked with Community Older Adults Mental Health Service, the Council’s mental health team, social workers, other medical professionals and carried out reviews to see how best to manage Mr X’s behaviour to reduce risk to himself and others.
19. The home gave Mr X notice to leave as it said it could not maintain his needs without one to one support, and this was not sustainable by the Council.
20. The Council struggled to find an alternative care home which had places and could meet Mr X’s needs.
21. At the end of January 2024, the home asked the Council to further extend its funding for one to one support for another four weeks. It said this was needed as Mr X was physically aggressive to staff, visitors and other residents. The Council agreed to this.
22. Mr X’s care needs were reassessed at the beginning of February 2024, including a mental capacity assessment. It found Mr X did not have capacity to make decisions about his finances. The home created a support plan which said one to one care was needed due to challenging behaviours.
23. In early March 2024, the Council emailed Ms A confirming care costs for her father’s care. Ms A said she would pay the residential costs herself while she awaited Deputyship for Mr X from the Court of Protection.
24. Ms A said she had been told in this email that her father was receiving one to one support, but the Council had not told her why this was needed, the cost per hour, how many hours of one to one support were needed, what the support looked like, when it would be reviewed and who had decided it was needed.
25. I have not seen that the Council answered Ms A’s questions.
26. In May 2024, the home gave notice for Mr X to leave the home again as it said its relationship with Ms A had deteriorated to the point it could not continue providing care for her father.
27. Ms A subsequently gave the Council notice of her intention to remove Mr X from the home and care for him at his own home.
28. In July 2024, the Council held a best interests meeting. The notes say it had tried to hold the meeting with Ms A’s involvement, but she had not engaged. The Council made a best interest’s decision that Mr X could not be sufficiently supported at home.
29. The notes from this meeting state Mr X’s behaviour remained unpredictable, he was prone to wonder and was awake much of the night, at risk of falls and was often disoriented. It reiterated Mr X’s need for one to one care.
30. In August 2024, Ms A told the Council Mr X’s financial situation had changed, and the Council asked her for more detail as it would need to carry out a further financial assessment.
31. Ms A asked the Council to respond to the questions she had asked about Mr X’s need for one to one care in March 2024. This does not appear to have been answered.
32. Also in August, the Council wrote to the home to query the need for one to one care. As the home did not provide the information, the Council ceased agreement for one to one care to continue as of early September.
33. In September 2024, a mental health practitioner visited Mr X and agreed one to one support was needed.
34. Ms A does not agree that Mr X should pay for the one to one care he received as this was never agreed to by her.
35. The Council says the fees from March to September 2024 must be paid by Mr X as he is a self-funder. It agrees that it will waive the fees prior to this date as it had not informed Ms A that Mr X was responsible for the fees prior to this.

Analysis and findings

36. The home carried out regular reviews of Mr X’s behaviour throughout his stay, and various professionals endorsed the need for one to one care as his behaviour was volatile and unpredictable.
37. The home made it clear it could not continue to care for Mr X unless the one to one support was in place as he was assessed to pose a high level of risk to both himself and to others around him.
38. Although Ms A and the Council questioned the home as to the need for one to one support, the care plans, assessments and reviews throughout Mr X’s stay support the home’s position that this was necessary.
39. The Council did not seek to charge for the one to one fees until the financial assessment was complete and the associated costs had been shared with his next of kin. The one to one fee sought therefore begins in March 2024.
40. As Mr X did not have capacity to make financial decisions, the Council did not pursue payment of the fees until August 2024. Ms A applied for deputyship in February 2024 in order to make those decisions for him.
41. Due to an error in initial documents in July 2024, there was a delay in the deputyship being granted. This did not therefore happen until November 2024.
42. Although the Council should not pursue payment until someone was in place to make Mr X’s financial decisions for him, it is correct in insisting fees for care provided became due from the point it completed its financial assessment and shared the outcome with Ms A.
43. While I appreciate Ms A did not agree with the need for one to one care, a best interests decision was made that this was needed. In this circumstance, the care was decided on the outcome of the home’s reviews and assessment of Mr X.
44. The Council was aware the home had concerns about maintaining Mr X’s care in light of Ms A’s stance, and it was looking for alternative accommodation for him. Although the Council was unable to find a suitable, available alternative in a timely manner, there is no evidence to suggest Mr X would not have incurred similar or even higher care costs if it had.
45. The Council is not at fault for charging Mr X for his care from the point it told Ms A of the charges in March until he left the home in September 2024.
46. The Council’s communication with Ms A could have been better, especially with regard to the questions she asked in March 2024. It was also confusing for Ms A that the Council made her aware it was not sure about the need for one to one care while also insisting it must be paid for. I have recommended it apologise for this.

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Agreed Action

47. Within one month of the decision, the Council will apologise to Ms A for failings in its communication with her. 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.
48. The Council will provide us with evidence it has complied with the above actions.

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Decision

49. I find fault causing injustice in relation to the Council’s communication.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman