Worcestershire County Council (19 012 126)

Category : Adult care services > Other

Decision : Upheld

Decision date : 24 Feb 2020

The Ombudsman's final decision:

Summary: A man I will call Mr P complained that the Council did not carry out the actions it agreed to take following his previous complaint. The Ombudsman finds that the Council has now carried out the agreed actions but the delay caused Mr P additional time, trouble and frustration. The Council has agreed to apologise for this and pay Mr P £250 in acknowledgement.

The complaint

  1. I investigated a complaint from Mr P about several matters, including how Worcestershire County Council (the Council) arranged the hospital discharge and social care for his late mother-in-law Mrs D (reference 17 014 175). I found that there was fault causing injustice, and made recommendations to the Council. The Council agreed to complete the recommended actions by 3 July 2019.
  2. Mr P complains that the Council failed to properly carry out the recommended actions.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I considered the relevant records from Mr P’s previous complaint and the Council’s actions following our recommendations. I considered information provided by Mr P over the phone. I made enquiries of the Council and considered its responses.
  2. I shared a draft of this decision with the Council and Mr P and considered their comments.

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What I found

The previous complaint

  1. Mr P complained about the care provided to his late mother-in-law Mrs D by the Council and an NHS Trust which runs a hospital (the Trust).
  2. Mrs D was admitted to hospital and discharged the following day to a care home, which was intended to be for a week to allow for other arrangements to be made. Mr P complained about the way the discharge was handled. He said the care home the Council discharged her to (Willow Bank House) was inadequate and unsuitable so they had to move Mrs P to a better one (Care Home A).
  3. Mr P said then, the Council took too long to review Mrs D’s social care needs, leaving her stuck at Care Home A when this was meant to be temporary. The Council agreed to pay for Care Home A at its banding rate until a Court of Protection deputyship was in place for Mrs D, but it caused delays with the deputyship application. After Mrs D died, the Council sent Mr and Mrs P invoices for Mrs D’s care, which included a top up fee. Mr P complained that the Council had calculated the charges incorrectly.
  4. On 13 March 2019, I issued a draft decision on the previous complaint. In this, I said:
      1. On 20 May 2014, the Trust and Council discharged Mrs D to Willow Bank House without her consent and without having established that this was in her best interests. At the time, the Council knew that the Care Quality Commission (CQC) had found poor quality care at Willow Bank House, which it had referred to the Council’s safeguarding team. But the Council could not show that it had properly addressed those concerns or considered the risks of continuing to place people there. This was fault and caused injustice to Mrs D and to Mr and Mrs P.
      2. The Council should have assessed Mrs D’s social care needs within 3-7 days of her discharge from hospital (i.e. by 27 May 2014). It did not complete a social care assessment until early July 2014.
      3. The Council found that Mrs D lacked capacity to decide where she should live, but it failed to ensure there was a best interests decision about where she should live. Therefore, it failed to consider whether it was in her best interests to stay at Care Home A or move to a cheaper placement. This meant it did not weigh up the potential impact of Mrs D moving from Care Home A where she had settled well against the financial impact of her staying in Care Home A, which was relatively expensive.
      4. Until mid-July 2014, the Council repeatedly asked Mr and Mrs P to pay the £292 per week top up fee for Care Home A. It had no basis for doing this. It had not made suitable alternative accommodation available at its banding rate. Even if it had, Mrs D could not have moved elsewhere without a best interests decision that her needs could be met elsewhere and it was in her best interests to move and there was no such decision.
      5. In July 2014, the Council decided that Mrs D’s placement at Care Home A was long term. It wrote to Mr P to say it would pay Care Home A at its banding rate. This was on the basis that once Mrs D’s money could be accessed via a Court of Protection deputyship the Council would be repaid, subject to financial assessment.
      6. Even though the Council told Mr P in writing that it was paying Care Home A at its banding rate, it was paying Care Home A at its full rate, including top up. The Council recorded that it would negotiate with Care Home A over its rate, but there is no evidence it did so.
      7. Based on bank statements the Council held, Mrs D’s savings would have dropped below the capital threshold of £23,250 and she would have become eligible for financial assistance from the Council in around September 2014, had she paid for her care contemporaneously. Even if the Council had established then that Mrs P could move to a cheaper care home, it could not have charged a top up fee unless the family were willing and able to pay the top up.
      8. From September 2014 onwards, the Council caused delays with the progress of the deputyship application. The deputyship was not in place by the time Mrs D died in August 2015.
  5. I recommended that within two months of the final decision the Council should:
      1. write to Mr and Mrs P to acknowledge what went wrong and apologise for the impact of this on them
      2. Jointly with the Trust, write to Mr and Mrs P to explain how they have changed or would change their procedures or practice to stop similar faults with hospital discharge and complaint handling happening again
      3. Explain to Mr and Mrs P how it had made various changes to its practice and procedures to prevent similar faults happening again
      4. Explain to Mr and Mrs P how it would review the invoices for Mrs D’s care in line with my findings and the relevant guidance to ensure they accurately reflect what she should have been charged
      5. Reimburse Mr and Mrs P the cost of two weeks top up fee and of a private capacity assessment, which they should not have incurred
      6. Pay them sums to acknowledge the distress they were caused by the faults in Mrs D’s care.

The Council’s comments on the draft decision

  1. After correspondence exchanged over the following weeks, the Council accepted the draft decision and recommendations on 3 May 2019.
  2. Before agreeing to the recommendations, the Council said it needed the opportunity to complete a financial assessment before establishing whether the invoices were incorrect.
  3. The Council said it needed a valuation of the mobile home owned by Mrs D, which would be included in the financial assessment as capital. I shared this with Mr P, who told me the Council’s view that the mobile home should be included as capital was incorrect. I advised Mr P this was a matter he would need to discuss with the Council.
  4. I issued the final decision, with the recommendations as outlined above, on 3 May 2019. Therefore, the recommendations should have been completed by 3 July.

After the final decision

  1. We emailed the Council on 4 July to say it should have completed the recommended actions but we had not heard anything. Having had no response, we emailed again on 12 July and asked for a response by 17 July.
  2. The Council contacted us on 16 July to say it was waiting for a response from the Trust. We replied that we would expect a response by the beginning of the following week. On 17 July, the Trust told us it had been trying to get in touch with the Council to make progress with the joint response.
  3. On 24 July we emailed the Council for an update. It replied on 26 July to say it was waiting for the Trust’s part of the joint response. The Trust sent this to the Council on 25 July.
  4. On 9 August, we wrote to the Council about the delay in completing the recommendations and requested a response by 16 August.
  5. On 13 August, the Council raised cheques for the financial remedy (not including a refund for a private capacity assessment Mr and Mrs P had paid for due to fault by the Council).
  6. The Council’s response to Mr and Mrs P, dated 19 August, largely complied with the recommendations to acknowledge what went wrong and apologise. However, though the Council said it would “review the invoices to ensure they reflect accurate charges made”, it did not explain how it would do this.
  7. We emailed the Council on 2 August to say Mr and Mrs P were not currently at home and to advise not sending the cheques for the financial remedies for now. We asked for an update on the review of the invoices. On 27 August we provided Mr P’s email address to the Council for it to discuss providing the financial remedy by bank transfer (though the Council did already have his email address).
  8. On 18 September we wrote to the Council to remind it that it had not complied with the recommendation that it explain in writing to Mr and Mrs P how it would review the invoices for Mrs D’s care in line with our findings and the relevant guidance. We asked for an update on its payment of the financial remedies.
  9. On 26 September the Council said it was in correspondence with Mr and Mrs P about their bank details to transfer the financial remedy. It said it would provide details of where it was up to with the outstanding recommendations.
  10. On 1 October the Council emailed Mr P. It asked him to provide relevant information to inform its financial assessment. It said when it received this information it could “detail the charges week by week”. It enclosed a BACS details form for their bank details and a retrospective financial assessment form.
  11. The Council also enclosed a letter from the Care Contribution Assessment Team dated 30 September. It said it had a “full charge assessment in place” as it had not received enough supporting documents to complete a full financial assessment. It said it needed information based on Mrs D’s finances as of 3 July 2014, when she entered long term care. It asked for bank statements and an estimation of the value of the mobile home she owned, which it said would be included as capital.
  12. On 7 October, Mr P told me he was unhappy that the Council had not taken account of our findings and had reissued the original invoices, which were invalid.
  13. We contacted the Council that day and asked why it had not complied with the recommendation to explain to Mr P how it would review the invoices. We also noted that Mr P told us that he had still not received the financial remedy. We asked the Council to comment on this by 9 October.
  14. On 18 October, having had no further response from the council, we opened this investigation into the council’s lack of compliance with all our recommendations.

Further events

  1. Mr P wrote to the Council on 5 November in response to its letter dated 30 September. He said he sought financial compensation as a result of financial consequences caused by the Council’s faults. He said the Council should identify the true costs that Mrs D should have been charged if her care had proceeded as it should have.
  2. Mr P said the Council had disregarded his correspondence of 2017 that the value of Mrs D’s mobile home should be disregarded as capital. He said in law, a mobile home is a chattel, or personal possession, and could not be considered capital any more than could any other personal possession. He asked the Council to resolve the outstanding financial remedies, and said after this he was happy to engage with the Council to determine the accurate charges for Mrs D's care.
  3. On 20 November, I advised Mr P that we considered it reasonable for the Council to receive the financial assessment information from him before reviewing the invoices. This was so it could consider changes to the invoices depending on whether Mrs D would have been below the capital threshold had she paid contemporaneously. Any subsequent dispute about the way in which the assessment was carried out could be considered later.
  4. On 21 November, the Council provided Mr P with its calculations for the financial remedies and asked for his bank details. Mr P responded with his bank details the following day. On 29 November, the Council paid the financial remedies.
  5. Mr P wrote to me on 3 December. He expressed unhappiness that the Council had not acknowledged the delays it had caused with complying the recommendations. Mr P was concerned that the Council had not accepted that it needed to calculate the charges for Mrs D’s care as though payments had been made contemporaneously. Mr P said the Council maintains its incorrect belief that the mobile home should be included as capital, when he had written to it numerous times in 2017 explaining why it should not.
  6. On 5 December, the Council wrote to Mr P. It said:
      1. It acknowledged the delay in writing to him, which it said was because the Trust delayed sending its response for the joint letter. It said the Ombudsmen agreed to the delay, and the final letter was sent to him by when we agreed.
      2. It would not pay Mr P compensation, and if he wished to pursue this he would need legal advice
      3. It does not dispute Mr P’s argument that a mobile home is a chattel. However, it disputes that a mobile home is a personal possession for the purpose of the charging regulations. Under paragraph 6.030 of the Charging for Residential Accommodation Guide 2014 (CRAG), personal possessions cannot be taken into account unless they were bought to reduce capital to reduce social care charges. It said the purpose of this paragraph is to leave the person with personal possessions they can take to their care home. It considers that a mobile home is a capital asset and can be taken into account when calculating someone’s capital to determine whether they would be a full charge payer.
      4. The Ombudsman had told it “that the approach [it has] proposed in order to assess what if any charges should be applied to [Mrs D’s] care is in fact correct”.
      5. Mrs D’s estate would be charged the full cost of her care unless a financial assessment shows that her capital or assets fell below the £23,250 threshold at the time she entered long term care.
      6. The Council asked for Mrs D’s bank statements, evidence of the valuation of the mobile home, and the lease for the mobile home so it could determine her share of ownership.
  7. Mr P wrote to me on 9 December, having received the Council’s letter. He said the Council had answered only some of the points in his letter. He said the Council’s claim that paragraph 6.030 is to cover items that people can take into a care home is incorrect. He said the Council’s assertion that Mrs D would be charged the full amount if she had more than £23,250 when she entered care disregards that her capital would have quickly fallen below £23,250 had she paid contemporaneously.
  8. Mr P wrote to the Council on 31 December. He said the mobile home was a personal possession, and according to CRAG should be disregarded. He said there is no basis in law for the Council’s assumption that the purpose of paragraph 6.030 of CRAG is to define items that people may wish to take into a care home. He said he was happy to provide information to inform the financial assessment.

My view

  1. The Council should have completed the recommendations by 3 July. Most of the recommendations did not require any involvement from the Trust. The Council should have written its own letter to Mr and Mrs P in accordance with the recommendations and paid the financial remedies by 3 July.
  2. I recognise that the Council needed to do a financial assessment to review the invoices, and that it needed further information from Mr P for this. But following the final decision it did not request this from him until October, three months after the recommendations should have been completed.
  3. The Council is at fault for not carrying out the action it agreed to take by 3 July, as it had agreed. This caused Mr P additional time, trouble and frustration, which is an injustice.
  4. The Council’s letter to Mr P of 5 December wrongly told him that the Ombudsman had agreed to its method of assessing the care charges. Since the final decision on the previous case, we gave no view except to agree that it needed information to inform a financial assessment.
  5. The Council also wrongly told Mr P that the Ombudsman agreed to it delaying writing to him in response to the recommendations. The Council accepted this inaccuracy and apologised for it to Mr P in an email of 6 February 2020.
  6. The review of the invoices has been complicated by the dispute between the Council and Mr P about whether the value of Mrs D’s mobile home should be included in the financial assessment as a capital asset.
  7. Under the National Assistance Act 1948 and the National Assistance (Assessment of Resources) Regulations 1992, councils can recover care home charges from a person in line with what they are liable to pay. When someone has capital over £23, 250, they are treated as able to pay. The amount that they need to pay is assessed based on their resources.
  8. CRAG says the following items are disregarded as capital: “any personal possession such as paintings or antiques unless they were purchased with the intention of reducing capital for the purpose of reducing the LA charge”.
  9. The Council’s correspondence to Mr P (paragraph 35c) does not set out an adequate rationale to support its view that it should include the value of Mrs D’s mobile home in the financial assessment. It did not justify its view that the purpose of paragraph 6.030 of CRAG is to leave the person with personal possessions they can take into a care home. I agree with Mr P that this does not appear to reflect the realities of entering a care home, where people can often take very few personal possessions and are discouraged from bringing valuables.
  10. The Council has subsequently explained its position further to me. It said it agrees with Mr P that a mobile home is a chattel, but it considers that the word chattel does not have the same meaning as ‘personal possession’ for these purposes. It said personal possessions are a type of chattel. It said CRAG uses the term personal possession rather than chattel, referring to objects such as jewellery. It does not believe a mobile home falls into this category. Further, the Council says that under paragraph 3.019 of CRAG, when a caravan is occupied as a home it is a dwelling. It says dwellings should be taken into account in financial assessments.
  11. I have seen no legal authority defining whether the value of mobile homes should or should not be treated as capital assets for the purpose of calculating care charges. The Ombudsman cannot make legal determinations; that is a matter for the courts. Therefore, I cannot give a view on whether either the Council or Mr P have interpreted the law and regulations correctly.
  12. In its email to Mr P of 6 February 2020, the Council said if Mrs D was assessed as a full charge payer, it would charge the full cost of her stay at Care Home A. If she was not assessed as a full charge payer, it would charge its “banding rate”, excluding the top up fee. It would calculate the charges taking into account the way in which Mrs D’s capital would have decreased had she paid contemporaneously.
  13. I consider that (setting aside the issue of whether the mobile home should be included, on which I cannot make a finding) the Council has now satisfactorily explained how it will review the invoices for Mrs D’s care and otherwise completed the agreed actions from the previous complaint.

Agreed action

  1. The Council will write to Mr P by 25 March 2020 to apologise for the additional time, trouble and frustration it caused by failing to comply with the previous recommendations on time. It will include an explanation of how it will ensure it complies with recommendations by the Ombudsman on time in future.
  2. To acknowledge the injustice caused to Mr P, the Council will pay him £250 by the same date.
  3. Within two weeks of receiving the information required for the financial assessment, the Council will complete the review of the invoices for Mrs D’s care.

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Decision

  1. I find that the Council failed to complete the agreed actions from Mr P’s previous complaint in a timely way. This was fault. It caused Mr P additional time, trouble and frustration. This is injustice. Therefore, I uphold this complaint.
  2. I consider that the actions the Council has agreed to take will satisfactorily remedy the injustice caused by the Council’s delay completing the previous recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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