Summary: Mr X complains the Council failed to deal properly with the charges for his mother’s care, resulting in it charging her more than she can afford to pay. The Council failed to resolve questions about his mother’s mental capacity. It also failed to deal properly with a third-party top-up agreement, resulting in his mother paying a top-up which was not sustainable. The Council needs to apologise, refund the top-up and pay financial redress to Mr X and his mother.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council failed to deal properly with the charges for his mother’s care, resulting in it charging her more than she can afford to pay.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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, sections 30(1B) and 34H(i), as amended)
4. 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”.

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How I considered this complaint

5. I have:
• considered the complaint and the documents provided by Mr X;
• discussed the complaint with Mr X;
• considered the comments and documents the Council has provided in response to my enquiries;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Mr X and the Council, for me to consider before making my final decision.

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What I found

What happened

6. In February 2020 Mr X’s mother, Mrs Y, went into hospital following a fall. She was waiting for knee surgery, but this could not be done because of a wound on her leg. The hospital placed her on a rehabilitation unit.
7. On 27 March the Council assessed Mrs Y’s needs to decide what support she would need at home. The assessment says the Council spoke to Mr X about paying for care and he said his mother would be happy to do this. It says Mrs Y managed her own finances. The section on mental capacity includes two questions:
• “Are there any decision that the person is unable to make for themselves?”
• “If Yes, is a Formal Assessment of Capacity Required?”

The answer to the first question was “yes” but there was no answer to the second question.

8. After returning home, Mrs Y had three falls in April.
9. On 18 April the Council spoke to Mr X about his mother’s mental capacity. He said she had capacity if asked simple questions. However, he said low mood and the impact of painkillers (she was using morphine patches) were affecting her capacity. The Council noted Mrs Y may have fluctuating capacity. It arranged to discuss the matter further with Mr X and his brother. It also noted the need to “try to ring” Mrs Y. The Council made no further records of these actions.
10. The Council arranged for Mrs Y to stay in Care Home 1 for emergency respite care as she needed more support than could be provided for her at home.
11. The Council reviewed Mrs Y’s placement on 27 April with Mr X. He said it was not safe for her to return home and told the Council her knee surgery could not go ahead because of COVID-19. The Council extended Mrs Y’s placement for another two weeks.
12. The Council sent Mr X a letter on 11 June which said the NHS would pay for his mother’s placement using funding put in place because of COVID-19 to avoid hospital admissions. It said it did not know how long the funding would be in place. It said charges would “be payable from the date the government determine the changes in policy have been lifted”. It sent him a finance pack and information about its charging policy. It said it would complete a financial assessment so they would know what Mrs Y’s future contribution to the cost of care would be.
13. On 22 June Mr X told the Council he was not happy with his mother’s care at Care Home 1. He said he had heard a member of staff shouting at his mother when she asked to go to the toilet. He said he did not want to raise this as a safeguarding issue but wanted to move his mother to another care home. He asked if the COVID-19 funding would transfer to another care home. The Council said the funding should continue. It sent Mr X a list of care homes.
14. Mrs Y moved to Care Home 2 on 3 July. The NHS continued to fund the placement. According to the Council’s records, it paid £539.02 a week. However, Care Home 2 cost more than that, so her family arranged for Mrs Y to pay a top‑up directly to Care Home 2 (£794 a month).
15. On 30 October the Council reviewed Mrs Y’s placement at Care Home 2. The record of the review says it did this via a three-way video call with Mrs Y and Mr X. Mr X says he was outside on a telephone, so could not hear properly. The Council told Mrs Y:
• if she needed to stay longer at Care Home 2 she would have to contribute towards the cost of the placement, as the COVID-19 funding had stopped;
• it had sent Mr X a copy of the financial assessment form and he had confirmed receiving it; and
• when he returned the form it would let her know what she had to pay.
16. Mrs Y said she was okay with paying for her placement. She said she wanted to return home after her operation with support. Mr X said she would return to Care Home 2 after the operation for rehabilitation before going home. The review says Mrs Y managed her own finances and there were no decisions she could not make for herself. Other records say Mrs Y “has no issues with her cognition and can have a clear concise conversation about her needs”.
17. Mr X returned the financial assessment form in November, but the Council did not start processing it until January 2021. It then noticed Mrs Y’s placement at Care Home 2 had been set up as a permanent placement, rather than a respite placement. The Council did not receive a new contract for the respite placement until March.
18. When the Council completed the financial assessment, it decided Mrs Y could afford to pay £270.39 a week towards the cost of her placement at Care Home 2 from 1 November 2020. It sent a letter to her home address about this. Mr X questioned some of the figures and pointed out his mother was already paying £794 a month in top-up fees to Care Home 2.
19. In April the Council amended Mrs Y’s financial assessment and sent another letter to her at her home address, this time saying she had to pay £257.25 a week. The Council also emailed the letter to Mr X. It told him his mother should not pay the third-party top-up. It told him to speak to her social worker for more information about the third-party top-up agreement. Mr X complained about the Council’s handling of the charges for his mother’s care.
20. After having her knee operation in April followed by rehabilitation at Care Home 2, Mrs Y returned home on 1 May.
21. When the Council replied to Mr X’s complaint in June, it referred to the meeting on 30 October and said:
• it held the meeting to decide if Mrs Y needed to remain in residential care, as the NHS COVID-19 funding had ended;
• Mrs Y had agreed to contribute to the cost of her care;
• Mr X confirmed he had received the financial assessment;
• it apologised if Mr X expected written confirmation the NHS COVID-19 funding had ended, but it did not have a letter template to send out following reassessment; and
• it apologised for the delay in completing Mrs Y’s financial assessment, which it put down to pressures arising from COVID-19 and the error with the contract for her placement at Care Home 2.
22. Mr X wrote to the Council on 12 June, as he was not satisfied with its response. He said:
• no date had been given for ending the NHS COVID-19 funding at the meeting on 30 October 2020;
• the lack of a letter template should not have prevented the Council from telling when the NHS COVID-19 funding would end; and
• the Council’s failings meant they did not know how much money Mrs Y would have to pay for her care.
23. When the Council replied in August it said:
• on 30 October 2020 it told Mrs Y the NHS COVID-19 funding had stopped and she would have to pay for her placement if she remained in Care Home 2;
• it agreed it should have confirmed this in writing;
• it agreed it took too long to complete the financial assessment;
• except in certain circumstances, top-ups can only legally be made by a third party; and
• it would waive four weeks of Mrs Y’s charges (£1,070.48), reducing her overall charge to £4,440.53.

Legal and administrative background

24. 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.
25. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:
• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.
26. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
27. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:
• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?
28. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
29. If no suitable accommodation is available at the amount identified in the personal budget, the council must arrange care in a more expensive setting and adjust the budget to ensure it meets the person’s needs. In such circumstances, the council must not ask anyone to pay a ‘top-up’ fee. A top-up fee is the difference between the personal budget and the cost of a home.
30. However, if a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if:
• the person can find someone else (a ‘third party’) to pay the top-up; or
• the resident has entered a deferred payment scheme with the council and is willing to pay the top-up fee themselves.
31. In such circumstances, the council needs to ensure the person paying the top-up enters a written agreement with the council and can meet the extra costs for the likely duration of the agreement. There are three circumstances under which a resident can pay their own top-up, but none of them applied to Mrs Y.

Is there evidence of fault by the Council which caused injustice?

32. The Council identified possible issues with Mrs Y’s mental capacity in March 2020. But there is no evidence of it resolving those issues. It dealt with Mr X about the arrangements for his mother’s care. He raised his own concerns about her mental capacity in April. Again, there is no evidence the Council resolved them, despite identifying the need to do so. It continued to deal with Mr X over the care home placement, including reviewing it with him and writing to him about the funding for it. It may have been difficult for the Council to resolve the issue of Mrs Y’s mental capacity because of restrictions arising from COVID‑19 which will have prevented a face-to face visit. Nevertheless, the failure to record any attempt to resolve the issue was fault by the Council. It left Mr X assuming the Council accepted his mother lacked the capacity to make significant decisions for herself. However, the Council never established that in line with the Mental Capacity Act.
33. By October, the Council appears to have been working on the basis of presumed capacity (see paragraph 25 above). Its records say there was no reason to question her mental capacity. This was in line with the principles of the Mental Capacity Act. But Mr X did not know the Council had changed its position. It appears he did not hear what the Council told his mother about the end of the NHS COVID-19 funding. This was because of the circumstances under which the meeting was held, which were due to COVID-19, rather than fault by the Council. However, the Council accepts it failed to confirm the ending of the NHS COVID‑19 funding in writing and that it delayed in completing Mrs Y’s financial assessment and offered to waive £1,070.48 of her charges. It is unclear why it waited until it had a temporary contract for her placement. It knew her placement was not permanent and could have completed the financial assessment on that basis.
34. When Mrs Y moved to Care Home 2 in July 2020, she started paying a top-up. From the family’s point of view this was affordable as she was not making any other contribution towards the cost of her care. They did not know the NHS funding would end before she moved back home. There is nothing in the Council’s records around the time of her move about the cost of the placement or the need for a top-up. However, it seems likely it was aware of this as it would be unusual for a care home not to tell a council what it was charging. The Council should have put a formal top-up agreement in place, rather than leave Mr X to sort this out with Care Home 2. This would have made it clear Mrs Y could not pay her own top-up. The failure to do so was fault by the Council. As the Council pointed out in its final response to Mr X’s complaint, there was no legal basis for Mrs Y to pay her own top-up. The Council therefore needs to refund the top-up she paid to Care Home 2.

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Agreed action

35. I recommended the Council:
• within four weeks:
1. writes to Mrs Y apologising for its failings;
2. waives £1,070.48 of her charges;
3. refunds the top-up she paid to Care Home 2 (less any outstanding charge);
4. pays her £150 for the avoidable distress caused; and
5. pays Mr X £150 for the time and trouble he has been put to in making the complaint; and
• within eight weeks takes action to ensure it has an agreement in place for any top-up and officers do not leave relatives to sort them out with care providers.

The Council has agreed to do this.

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Final decision

36. I have completed my investigation on the basis there has been fault by the Council causing injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman