Summary: Mr F complains about the homecare provided to his mother and that the Council referred him to the office of the public guardian. We found no fault.

The complaint

1. Mr F complains on behalf of his mother, Mrs J, that the Council:
• Failed to act on their concerns about the quality of home care provided by a homecare agency in May 2023, causing distress.
• Continued to send the care agency after they cancelled the care, causing a debt to accrue for care that was not delivered.
• Advised Mrs J to apply for attendance allowance, causing her to be financially worse off as the Council then started charging her for care.
• Reported him to the Office of the Public Guardian with no good reason, causing him significant distress.
2. Mr F says the situation has been extremely stressful and has caused them to have no faith in the Council.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. 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

5. I spoke to Mr F about the complaint and considered the information he sent, the Council’s response to my enquiries and:
• The Care Act 2014 (“the Act”)
• The Care and Support Statutory Guidance 2014 (“the Guidance”)
6. Mr F 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

Care and support

7. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council.
8. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan. Councils should keep care and support plans under review, at least every 12 months.

Reablement support

9. Reablement support services are for people usually after they have left hospital or when they are at risk of having to go into hospital. They are provided in the person’s own home by a team of mainly care and support professionals. Reablement care is time-limited and aims to help a person to preserve or regain the ability to live independently.
10. Regulations require intermediate care and reablement to be provided without charge for up to six weeks. This is for all adults, whether or not they have eligible needs for ongoing care and support. Councils may charge where services are provided beyond the first six weeks but should consider continuing providing them without charge because of the preventive benefits. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)

Charging for care and support

11. Where a council arranges care and support to meet a person’s needs, it may charge the adult for the cost of the care. These charges may increase every year.
12. Councils must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of their care. In assessing what a person can afford to pay, a council must take into account their income, such as pensions or benefits.
13. Councils should ensure there is sufficient information and advice available to ensure that the person or their representative are able to understand any contributions they are asked to make. This should include information and advice on eligibility and applying for disability benefits and other types of benefits. Councils may help individuals to access the support to which they are entitled, including, for example, helping the person to access some disability-related benefits and allowances.
14. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. The Guidance sets out a list of examples of such expenditure. It says any reasonable additional costs directly related to a person's disability should be included.

Mental capacity

15. 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.
16. 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.
17. 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.
18. 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. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.
19. A Lasting Power of Attorney (LPA) is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests. An attorney or donor must register an LPA with the Office of the Public Guardian (OPG) before the attorney can make decisions for the donor. The OPG oversees the work of attorneys.

Safeguarding

20. Under section 42 of the Care Act 2014, if an adult (with or without capacity) has care or support needs, is at risk of abuse or neglect (including self-neglect) and is unable to protect themselves from that abuse or neglect, the council should make enquiries to decide if action is needed to ensure their safety. These are referred to as safeguarding enquiries.

What happened

21. I have summarised the key events. This is not meant to detail everything that happened.

Background

22. Mrs J was living alone in her own home. Following a stroke, in March 2021 she started to receive reablement care at home from an agency (Agency 1) which specialised in short term reablement support. Her son, Mr F, has LPA for Mrs J’s health and welfare and finances.
23. Agency 1 reviewed Mrs J’s needs after four weeks. It considered she would have long term care and support needs and referred Mrs J to the Council for a care and support assessment.
24. The Council assessed Mrs J on 10 May 2021. It found she had mobility and memory problems, and some communication difficulties. The Council determined that Mrs J was eligible for support with personal care, nutrition, dressing and medication. The care and support plan was for four homecare visits a day, totalling 19.25 hours a week.
25. The Council looked for a homecare agency to provide this care, but none had capacity. Agency 1 therefore agreed to continue to provide it as an interim measure.
26. The Council assessed Mrs J’s finances. In June 2021 it found she did not need to make any contribution to the costs of her care but she was entitled to Attendance Allowance (a benefit for older people with a disability). It therefore asked a charity to apply for this on her behalf. After the Attendance Allowance of £68.10 per week was put in place, in November 2021 the Council wrote to say that Mrs J’s contribution to the cost of her care would be £58.69 per week.
27. The Council spoke to Mr F about Mrs J’s savings following the sale of her former home and for a period it treated Mrs J as someone who should pay the full cost of her care. In February 2022 the Council agreed to charge £58.69 per week from 22 November 2021.
28. At the review of Mrs J’s care and support in March 2022, the Council reminded Mrs J and Mr F that Agency 1 was providing care as a temporary measure until another agency could be found.
29. Mr F told the Council in November 2022 that he had not yet paid any of the invoices for Mrs J’s care as there had been a dispute about the amount she should be charged.

Homecare May 2023

30. In April 2023 the Council found a homecare agency (Agency 2) which had capacity to deliver Mrs J’s care. It advised Mrs J of this but she became very distressed at the prospect of changing care providers. During a visit to Mrs J on 20 April the social worker agreed to speak to Agency 1 to see if there could be a transition period with Agency 2 to ease this change. Agency 1 agreed to shadow Agency 2 for one week, starting 24 April 2023.
31. Mr F called the Council on 27 April. He said they were unhappy with Agency 2 and Mrs J was very distressed. The Council’s note of the call says Mr F said it may help if the carers “were local people not from another country”. The Council spoke to Agency 2 which said Mrs J was not accepting of the carers and had sent one away. Agency 2 had temporarily used different, more expensive carers.
32. The Council spoke to Mr F on 3 May. The Council’s case note says:

“[Mr F was] extremely angry with [the situation] stating he had told us it would not work with “coloured staff” stating we ignored him … [Mrs J was very distressed and the Council] had “left them without carers”. I informed him we have not left them without carers but that they are refusing workers from different backgrounds. … [Agency 1] are a crisis team and they were ending on 01/05, we couldn't leave his Mum without care.”

33. Mr F told Agency 2 on 11 May that he no longer wanted them to provide care and would not allow them access after 15 May. He emailed saying the carers were inexperienced.
34. The Council visited Mrs J on 17 May to assess her capacity to make a decision about her care. Mrs J would not talk to the workers without Mr F being present. Mr F declined to take part so the assessment could not be completed.
35. Agency 2 gave the Council notice on 18 May. It said it would continue to provide care until a new care provider was found. A new agency was able to start on 1 June 2023. Mr F told us that carers continued to try to visit after 15 May and would use the key in the key safe to gain access.

Safeguarding enquiry

36. Safeguarding concerns were raised with the Council that Mr F was not allowing care to be provided to Mrs J and had removed the key from the key safe on 22 May. There also continued to be an outstanding debt as Mr F had not arranged for the invoices to be paid.
37. The Council held a safeguarding strategy meeting which found that Mr F was preventing Mrs J from accessing care and support, a capacity assessment and a review of her care package. It also noted the accrued debt and considered that Mr F may not be acting in accordance with his role as LPA. The meeting agreed it should refer the matter to the OPG.

The complaint

38. Mr F was contacted by the OPG. He says this was very intensive and distressing but he was cleared of any wrongdoing. He complained to the Council on 2 January 2024 that it had referred him to the OPG without informing him or discussing its concerns with him. The Council spoke to Mr F and he then raised his other complaints.
39. The Council investigated and replied on 2 February 2024. It did not uphold the complaints. The Council said:
• It had been made clear that Agency 1 could not provide care in the long term and that there would be a transition to Agency 2, rather than a trial.
• Agency 2 had made every effort to deliver care. As such the Council was legally obliged to pay them and charge Mrs J her assessed contribution. [The outstanding debt was £7,434.07 in January 2024.]
• The Council was correct to recommend Attendance Allowance be applied for. Costs for a gardener or a cleaner may be allowed as a Disability Related Expenditure.
• The referral to the OPG had been a result of a safeguarding enquiry.
40. Mr F came to the Ombudsman. He told us Agency 2’s carers were inexperienced and had no rapport with Mrs J. The Council told us it had had no concerns about the quality of care delivered by Agency 2.

My findings

41. The evidence I have seen shows that it had been explained to Mrs J and Mr F that Agency 1 was delivering care as an interim measure until a homecare agency could be found. It was appropriate to change care providers because Agency 1 was a short-term reablement service.
42. When Agency 2 became available in April 2023 the records show it was agreed there would be a one-week transition period with both agencies visiting Mrs J to ease the change. This was because she was anxious and distressed about changing carers. I therefore do not find that the Council had agreed to trial Agency 2 and I find no fault in the way the Council changed care providers.
43. Mrs J and Mr F were unhappy with Agency 2 but I have seen no evidence that poor care was delivered.
44. Nonetheless, there had been no assessment that Mrs J did not have capacity to make decisions about her care. She was therefore entitled to decide she did not wish to receive care from Agency 2, even if this was for inappropriate or racist reasons.
45. My view therefore is that when Mr F contacted Agency 2, he was in effect giving notice on the care. The Council rightly visited Mrs J on 17 May to assess her capacity to make this decision. When this assessment could not be completed, it had to assume she had capacity. It should then have looked for a new care provider. It did not do this until Agency 2 gave notice on 18 May.
46. But this did not cause any injustice to Mrs J or Mr F because there was a chargeable notice period and a new agency was not found until 31 May. This would have been the case even if the Council had accepted Mrs J’s notice on 17 May.
47. There was therefore no fault by the Council in charging Mrs J for the care delivered (or attempted to be delivered) by Agency 2 from 24 April to 31 May 2023.
48. I have seen no evidence of fault in the Council’s assessments of Mrs J’s finances. It properly advised Mrs J to apply for benefits she was entitled to. Mr F says receiving Attendance Allowance made her worse off, but the Attendance Allowance (£68.10 per week) was more than the assessed contribution for her care (£58.69 per week), so in fact she benefited. Mrs J’s assessed contribution increased in November 2023 as it was established that she was also receiving an occupational pension.
49. Mr F complained the Council had raised concerns with the OPG without telling him, but this is not fault. When the Council received safeguarding alerts, the law says it had to consider whether to investigate these. It did so and a multi-disciplinary team of professionals decided to refer Mr F to the OPG having considered those concerns. This was a decision the Council was entitled to make and there is no evidence of fault in the way it was made.
50. As I have found no fault in the care and support or financial assessment, Mr F should now make arrangements with the Council for Mrs J to pay the debt she owes.

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Final decision

51. There was no fault by the Council. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman