Summary: There was no fault in the way the Council decided Mrs Y should be discharged from hospital to a care home during the COVID-19 pandemic. However, the Council was at fault for a delay in the Deprivation of Liberty Safeguards process, a lack of clear advice about what action to take relating to Mrs Y’s housing association tenancy when she went into residential care, and a failure to properly record how it considered a disposal of capital amounted to a deprivation of assets. It should apologise and pay Mr X, who was handling Mrs Y’s affairs, £200 for the uncertainty caused, and review its processes.

The complaint

1. Mr X complained the Council forced his mother, Mrs Y, to move into a care home during the COVID-19 pandemic. In particular, he said the Council:
1. dismissed his suggestion that she could return home with an increased care package;
2. gave him incorrect advice about her housing association tenancy;
3. incorrectly told him it would charge for her care from the date she moved there; and
4. did not respond to all the issues he raised in his complaint.

During our investigation he also raised concerns about how the Council had considered Mrs Y’s capital when it carried out a financial assessment.

2. Mr X says that, as a result of the Council’s faults, Mrs Y lost the opportunity to return home with a care package. He therefore considers the Council should pay for her care.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
7. If we are satisfied with a council’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

8. I considered:
• the information Mr X and the Council provided;
• relevant law and guidance, as set out below; and
• our guidance on remedies.
9. Mr 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

Relevant law and guidance

Assessment of needs

10. The Care Act 2014 requires councils to carry out an assessment for any adult with an appearance of need for care and support. If the council decides the person has “eligible needs” as defined by the Act, it must meet those needs. It will set out the support needed to meet their needs in a support plan, and will calculate a personal budget, which is the amount needed to meet the person’s eligible needs.

Residential care and COVID-19

11. Under normal circumstances, if a person needs care in a care home, the council will offer a choice of at least two care homes that can meet the person’s needs within the personal budget. Councils are entitled to charge for the care and will carry out a financial assessment, in line with regulations and guidance, to determine how much the person should contribute to the cost of their care. Those with capital above the upper limit (£23,250) are required to pay the full cost of their care.
12. In response to the COVID-19 pandemic, the Government introduced the COVID-19: Hospital Discharge Service Requirements (Discharge Today). Discharge Today emphasised the need for discharge from hospitals as soon as possible to ensure beds were available for those with acute medical needs. It suspended the usual guidance on the choice of care home and some of the usual assessments. Under Discharge Today the costs of care were met by the NHS until the care home placement could be reviewed. The Discharge Today guidance was withdrawn in August 2020.

Mental capacity and best interest decisions

13. The Mental Capacity Act 2005 provides a framework for deciding whether a person has capacity to make a decision, including the questions that must be considered when considering if they have capacity. If the person does not have capacity to make a particular decision, the Act provides a checklist of steps that decision makers must follow when deciding what is in the person’s best interests.
14. The deprivation of Liberty Safeguards (DoLS) provide legal protection for those who lack capacity to consent to living in a care home. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. There is a procedure for care homes to follow to obtain authorisation for the deprivation of liberty.
15. Duties under the Mental Capacity Act 2005, including the DoLS safeguards, continued to apply during the COVID-19 pandemic.

Lasting power of attorney

16. A lasting power of attorney (LPA) is a legal document that lets a person (the donor) appoint one or more people (known as attorneys) to help them make decisions. The LPA must be registered with the Office of the Public Guardian before it can be used. Once registered, the attorney can continue to act for the person, even after they lose the mental capacity to make a decision for themselves.

Charging for residential care

17. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
18. Councils must carry out a financial assessment to decide how much the person should pay for their care. Where the person has capital above the upper capital limit (currently £23,250), the person must pay the full costs of their care.

Deprivation of assets

19. The Care and Support Statutory Guidance says where a council considers the person has deliberately deprived themselves of assets to reduce the contribution to their care costs, it can treat them as still having the assets. The amount of those assets is called “notional capital”.
20. Annex E says before deciding there has been a deprivation of assets, councils must consider whether the person, at the time of the disposal of the asset:
• had a reasonable expectation of needing care and support;
• had a reasonable expectation of needing to contribute to the cost of that support; and
• whether avoiding care and support charges was a significant motivation in the timing of the disposal.

The Council’s charging policy

21. The Council’s charging policy (dated August 2015) sets out the approach to deprivation of assets at Annex E. It provides examples of what might amount to a deprivation, such as a gift to family members, but says “this will not be deliberate in all cases”.
22. The policy says the Council will consider “the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred:
1. Whether avoiding the care and support charge was a significant motivation;
2. The timing of the disposal of the asset. At the point the capital was disposed of could the person have a reasonable expectation of the need for care and support?; and
3. Did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?
23. Its policy also says:
• in some cases the Council may wish to conduct its own investigations into whether deprivation of assets has occurred rather than relying solely on the declaration of the person;
• if it decides there was a deprivation, it will need to decide if the person should be treated as still owning that asset; and
• “As a first step, the Council will seek to charge the person as if the deprivation had not occurred. This means assuming they still own the asset and treating it as notional capital or notional income”.

What happened

24. Mrs Y, who has a diagnosis of dementia and mobility difficulties, lived in a rented flat with a care package, comprising four calls per day, as well as support from her two sons. Mrs Y granted an LPA to her son, Mr X.

Discharge decision and DoLS authorisation

25. In late May 2020 Mrs Y was admitted to hospital with a chest infection and a suspected urinary tract infection. By mid June, Mrs Y was medically fit for discharge.
26. On 19 June a Council social worker visited Mrs Y in hospital. They carried out a Mental Capacity Assessment (MCA) and concluded Mrs Y did not have capacity to decide where she should live on discharge. I have seen the record of the MCA, which shows the social worker addressed the questions set out in the Mental Capacity Act 2005, when considering whether Mrs Y had capacity to make that decision.
27. Also on 19 June, the social worker made a best interests decision that it was in Mrs Y’s best interests to be discharged into a care home that could provide 24 hour care for her. This was considered necessary in light of her confusion and poor mobility. I have seen the record of the best interests decision, which shows the social worker consulted appropriately with other relevant professionals and followed the steps set out in the Mental Capacity Act 2005.
28. The record of the best interests decision stated that it was not safe for Mrs Y to return home, where she lived alone, even with an increased care package due to the decline in her physical and mental health. It set out various risks involved with returning home, including the risk of falls, her incontinence needs at night and her lack of insight into her own care needs, which meant she was not able to ask for support when needed.
29. The record of the discussion between the social worker and Mr X, stated the social worker explained the risks if Mrs Y returned home and reports Mr X said:
• he was apprehensive about making decisions without seeing Mrs Y;
• had previously wanted Mrs Y to be in 24 hour care but this was turned down by the Council in 2019;
• agreed Mrs Y should be discharged from hospital to a care home, although he was unhappy he would not be able to visit her there due to COVID-19 restrictions.
30. On 25 June, the social worker completed the assessment of needs, using information from previous assessments, hospital records and the records for the best interests decision. They spoke to Mr X who said he was unhappy about Mrs Y going to a care home that neither he nor Mrs Y had seen. The social worker said the care home could provide photographs but it is unclear if it did so. Mrs Y moved to the care home the following day.
31. The care home application for standard authorisation under the Deprivation of Liberty Safeguards (DoLS) was made in July 2020. The assessor considered:
• the information set out above; and
• a MCA carried out by a consultant psychiatrist in July 2020, that confirmed Mrs Y did not have capacity to make decisions about her care.

The assessor consulted, by video call:

• the care home, which confirmed it was meeting Mrs Y’s needs and that she appeared happy there; and
• Mrs Y, who reported being happy in the care home.
3. The assessor also consulted Mr X and recorded that:
• Both he and his brother, as joint attorneys, agreed to Mrs Y’s discharge to the care home. However, this was a difficult decision for them to make since they were not able to see her or discuss it with her (due to COVID-19 restrictions on visiting).
• Mr X felt residential care would do Mrs Y “the world of good” as it met her need for social interaction, as she had become very isolated at home.
• Mr X agreed with the DoLS authorisation as it was safer for Mrs Y to be in 24 hour care.
4. The Council carried out a review of Mrs Y’s care needs in mid November 2020. The review showed some improvement in her condition. She was no longer recorded as being doubly incontinent but did need support with her continence and continued to wear pads. It also recorded an improvement in her weight, which was previously a concern. However, the review showed Mrs Y needed a high level of care, including throughout the night, and stated there would be a negative impact on her wellbeing if she did not continue to receive the current level of support.
5. The Council completed the DoLS authorisation in mid December and said it sent the relevant paperwork to both Mr X and the care home. Mr X said he did not receive this until mid May 2021. The Council was not able to account for the delay in Mr X receiving documents but accepted there were delays in dealing with the DoLS authorisation. It said it was taking action to address delays in the DoLS process to reduce the risk of others being affected by delays.

Advice about Mrs Y’s tenancy

35. Mr X said he had asked the social worker several times in June 2020 what he should do about his mother’s housing association tenancy. He said he was advised to give up the tenancy when she was discharged from hospital. He was later told he should not have done so until after the review, which did not take place until November. He considers giving up the tenancy in June 2020 meant Mrs Y was effectively homeless and could not return home. Although, the officer carrying out the review in November 2020 said they could consider a move to sheltered accommodation, Mr X was unhappy as this would mean an additional move for his mother.
36. The Council’s record for the discussion on 19 June states the social worker advised Mr X “not to end tenancy until [Mrs Y] was discharged from hospital”. In its stage 2 complaints response, the Council accepted the social worker could have given clearer advice about ending the tenancy.

Charging for care

37. The records indicate the Council advised Mr X in June 2020 that his mother’s care in the care home would be funded by the NHS under COVID-19 funding arrangements and that the timescale for that was not known.
38. The Council sent Mr X an information pack about charging for care in July 2020, including a financial assessment form. Mr X returned the completed form in late August and the Council carried out the financial assessment in September. It wrote to him on 29 September to say Mrs Y would need to pay the full costs of her care, which were £628.98 per week, with effect from 26 June 2020. Mr X queried this and the Council wrote again on 5 October 2020 to say the costs were being covered through a COVID-19 scheme so Mrs Y was not required to pay until the Government ended the scheme.
39. At the review in November 2020 the Council told Mr X the COVID-19 funding had ended. It wrote to Mr X in mid December 2020 to confirm Mrs Y would need to pay the full cost of her care, as previously advised, from the date of the review.
40. It later sent a letter saying costs were due from the day Mrs Y moved into the care home but quickly corrected this when Mr X pointed out that was not what he had been told.

Deprivation of assets

41. The Council says Mrs Y was diagnosed with dementia in March 2019. Also in March 2019, there was a visit to discuss charging for adult social care, at which point a Finance Checklist was completed. This includes a checklist, with boxes to tick to indicate that advice was given on various aspects, including advice about charging, advice about capital limits and advice about appealing if unhappy with the financial assessment. All the boxes were ticked. The Checklist also states a finance pack was provided. Mr X signed the checklist to confirm the advice and information was given.
42. In response to my enquiries, the Council said Mrs Y had a dementia diagnosis and Mr X was aware that care was chargeable in March 2019, both of which occurred shortly before a gift of £48,000 was made in April 2019. The financial assessment form which Mr X completed in August 2020, states the gift was given to Mrs Y’s two sons to give to Mrs Y’s grandchildren.
43. The Council included the sum of £48,000 as “notional capital” in the financial assessment. As mentioned above, it wrote to Mr X in September 2020 to say Mrs Y needed to pay the full costs of her care, and enclosed an explanation of how this was calculated. The Council said Mr X had not challenged this.

Complaints handling

44. Mr X complained in mid December 2020. He complained:
• his mother had been forced into a care home and that he had not been given any other option;
• the advice about the tenancy was wrong, and had made her effectively homeless; and
• he was initially told the care was funded by the state but had now been told the care was chargeable from the day his mother moved to the care home.
45. The Council’s policy allows it 20 working days to respond at stage 1 of its complaints process, which was 20 January 2021. It wrote to Mr X on that date to explain the response was delayed. It responded on 28 January and said:
• a decision was made that moving to a care home was in Mrs Y’s best interests and the record stated Mr X was in agreement with that;
• it accepted the social worker could have given clearer information about ending the tenancy, for which it apologised; and
• its finance team accepted it made an error when it stated costs were payable from June 2020 and this had since been corrected.
46. Mr X was unhappy with the response and asked the Council to consider the complaint at stage 2 of its complaints process. He said:
• he was not in agreement with 24 hour care and no alternatives were considered;
• he was not given a date for the review of his mother’s care;
• he was given clear advice to release the flat when his mother was discharged from hospital and this advice was repeated several times;
• at the review in November 2020, the social worker confirmed the initial advice about the tenancy was wrong, and suggested sheltered housing could be considered;
• he had not been able to visit the care home before his mother moved there and had been told he could complain but this would mean his mother was moved to a different care home; and
• in the circumstances, his mother’s care should be funded entirely or mainly by the Council.
47. The Council responded to the stage 2 complaint on 2 March 2021, one day later than the 20 working days set out in its complaints policy. The response set out the context in which decisions were made in June 2020, including the Discharge Today guidance. In response to his specific complaints, it said:
• the record showed the social worker had discussed 24 hour care with Mr X, who indicated he had previously wanted this but his mother was not eligible when he asked about it. However, the circumstances had changed and it was no longer safe for Mrs Y to return home with a care package;
• no-one was given review dates between March and August due to changes to the usual process as a result of the COVID-19 pandemic. However, it accepted Mr X had not been sent a letter explaining the process;
• the records provided a different account of the advice given about the tenancy but it accepted it could not show clear information was given, for which it apologised;
• Mr X was given information about charging, including that the costs were initially funded by the NHS, that a finance pack was sent in July and Mr X returned completed forms in late August;
• it was not possible to visit care homes in June 2020 to check their suitability due to the COVID-19 pandemic. If Mr X had concerns about the level of care being provided, the Council would investigate these but concerns about a placement would not necessarily mean a move to another care home.

Was there fault causing injustice?

Discharge decision and DoLs authorisation

48. Mr X told me he had not agreed Mrs Y should be discharged to a care home, and was unhappy the Council insisted its records said he had agreed to this. He also told me he had identified a care home for Mrs Y the previous year but the Council had not agreed Mrs Y needed residential care then.
49. The records of conversations with the initial social worker in June 2020 and the DoLS assessor in July 2020 both indicate Mr X was in agreement with the decision to discharge Mrs Y to a care home. Both records note Mr X found the decision difficult because he could not visit his mother in hospital to discuss this with her, nor could he visit the care home identified. The records show the Council’s view was that Mrs Y needed 24 hour care because of the significant risks to her safety and wellbeing if she returned home, and that the risks were discussed with Mr X, which Mr X has not disputed. On balance, I find the Council consulted appropriately, explained the risks if Mrs Y were to return home, and was satisfied Mr X was in agreement to Mrs Y being discharged to a care home. Although I acknowledge how difficult this was for Mr X and his brother, given COVID-19 restrictions at the time, the Council was not at fault.
50. The care home requested a DoLS authorisation in early July 2020 but the Council did not complete the authorisation until mid December 2020. For reasons I cannot establish, Mr X did not receive the paperwork until May 2021. The delay in completing the authorisation and sending the paperwork to Mr X was fault. In response to my enquiries, the Council accepted there were delays in the DoLS process and offered to apologise, which is a suitable remedy

Advice about tenancy

51. The Council’s record does not show it gave clear advice about ending the tenancy. The failure to do so was fault. The Council accepted it could have given clearer advice and apologised.
52. Mr X argues that advising him to end the tenancy meant Mrs Y was effectively homeless and forced to remain in the care home. However, on balance, it was unlikely that Mrs Y could have returned home even if the tenancy had not ended. Therefore, Mrs Y has not suffered a significant injustice as a result of the poor advice, although I accept it caused Mr X some uncertainty as a result of the lack of clarity.

Charging

53. Council records show it explained to Mr X that the care home fees were initially covered by the COVID-19 hospital discharge scheme. Although it failed to send its standard letter to confirm this, it is clear Mr X was aware there was no charge initially since he challenged the Council’s letter dated 29 September suggesting fees were due from June 2020. I have seen no evidence the Council told him at that stage what the weekly charge would be when COVID-19 funding ended, which would have been good practice.
54. There was no delay in carrying out the financial assessment after Mr X returned completed forms. In the September 2020 letter, the Council told Mr X what the weekly cost would be once the COVID-19 scheme ended, although it could not tell him at that stage when this would be.
55. Council records show an officer explained to Mr X as part of the review in November 2020 that costs would be charged from that date. The Council confirmed this in writing in December 2020.
56. Although there was a delay in telling Mr X the actual cost of Mrs Y’s care, it is clear he was aware there would be a charge once the COVID-19 funding ended and he was informed of the actual cost several weeks before the funding ended. Therefore, I do not think this warrants a finding of fault.

Deprivation of assets

57. In its financial assessment in September 2020 the Council included notional capital of £48,000 on the grounds that the gifts Mrs Y made in April 2019 amounted to a deprivation of assets. It has not provided a record of how it considered this at the time of the financial assessment, although it has provided an account in its response to my enquiries.
58. Its policy states that it should not assume that any disposals amount to a deprivation, which is in line with the Statutory Guidance. However, there is no evidence the Council asked Mr X for any further information about the disposal in order to consider whether avoiding care costs was a significant motivation.
59. The failure to record how it considered whether there was a deprivation and, in particular, whether there was an intention to avoid care costs when making the gift, was fault.
60. That said, I accept that Mr X and Mrs Y were given comprehensive information about charging and that Mrs Y was diagnosed with dementia a month before the gift was made. I also note that the possibility of residential care had been explored in 2019. In the circumstances, the Council was entitled to decide the timing suggested there was a substantial motivation to avoid care costs although there may have been other motivations as well. I also note that Mr X did not challenge this when the Council sent him the explanation of how it calculated the amount Mrs Y had to pay in September 2020 nor during the complaint process. Nor has he provided any other explanation for the gift either to the Council or to us. Therefore, although I have identified fault in the decision-making process, there is no evidence to suggest the decision reached was wrong. On this basis, I cannot say the fault caused Mr X or Mrs Y a significant injustice and do not consider it is appropriate to ask the Council to reconsider its decision.

Complaints handling

61. I note the Council’s responses were slightly late at both stage 1 and stage 2. However, taking into account the delays were modest, they occurred during the COVID-19 pandemic and the Council wrote to Mr X to let him know the stage 1 response would be delayed, I do not consider this amounts to fault.
62. Mr X says the Council did not address his complaint that he did not agree his mother should be discharged to a care home and kept insisting its records said he had agreed. It also did not respond to his request for the Council to pay all or most of her care costs.
63. Although the Council did not respond specifically to the suggestion Mr X had not agreed, I have reviewed its records which do indicate that was what officers understood, and therefore it was reasonable for it to say this in its complaints response. Further, it did not identify failings that would warrant it agreeing to pay some or all of Mrs Y’s care costs. I am satisfied the Council provided an appropriate response to the complaint and was not at fault.

The Council’s offer to remedy

64. In response to my enquiries, the Council accepted its communications with the family could have been clearer and there were delays with the DoLS authorisation. It offered to apologise and pay Mr X £200 to remedy the injustice caused.

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Recommended action

65. The Council will, within one month of the date of the final decision:
• apologise to Mr X for the delays in the Deprivation of Liberty Safeguards process, and the lack of clear advice about ending Mrs Y’s tenancy; and
• pay Mr X £200 to remedy the uncertainty caused.
66. The Council will, within three months of the date of the final decision:
1. remind relevant staff of the need to give clear advice about assets, such as tenancies, when a person moves into residential care;
2. reviews its processes to ensure that staff:
• consider whether avoiding care costs was a significant motivation for a disposal of assets when deciding whether or not a disposal amounts to a deprivation. This would include asking the person for an account of the reasons for the disposal;
• properly record the factors considered and, where appropriate, the reasons for considering the disposal was a deprivation; and
• provide, in the letter confirming the assessed contribution, information about how to challenge the financial assessment where it has decided there was a deprivation of assets.

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Final decision

67. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy the injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman