Summary: Mrs X complains her mother incurred unnecessary residential care home fees as the Council failed to explain all options for her care and the packages available to her. Mrs X also complains the Council wrongly treated Mrs Y as having capacity to make decisions about her care. The failure to provide full and accurate information regarding Mrs Y’s eligibility for financial assistance with her care amounts to fault. As does the failure to carry out a mental capacity assessment at the outset. These faults have caused Mrs Y an injustice as she has paid more for her care than was necessary.

The complaint

1. The complainant, whom I shall refer to as Mrs X complains her mother, Mrs Y, paid £5828 for respite care in a residential placement which would not have been necessary if the Council had explained all options of care and packages available to her when she telephoned for advice.
2. Mrs X says Mrs Y could have received a package of care at home as she now does at a cost of £6.26 a week if they had been given the correct information from the Council at the outset. Mrs X asserts the Council should reimburse the full cost of Mrs Y’s residential care because they could not make alternative arrangements for care at home in the short space of time available between learning of the Council’s error and the respite being needed.
3. Mrs X also complains the Council has treated Mrs Y as having capacity to make decisions about her care despite being aware she does not have capacity and that Mrs X is her Attorney.

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The Ombudsman’s role and powers

4. 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)
5. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
6. 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

7. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mrs X; and
• Mrs X, the Council and the Trust 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

Charging for care

8. 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)
9. Where a Council has decided to charge, it must assess a person’s finances to decide what contribution he or she should make towards the cost of their care. The Council and the Trust’s websites confirm that people with capital or savings above the threshold of £23,500 must pay the full cost of their care, whether this is care in their own home, or at a care home. The Council may take account of the value of a person’s property when they are going into a care home, but not where they will receive care in their own home.

What happened here

10. The Council commissions Torbay and South Devon NHS Foundation Trust to provide adult social care on its behalf. In July 2019 Mrs X contacted the Trust for advice on support with Mrs Y’s care. Mrs Y was diagnosed with vascular dementia in 2018 and has poor short-term memory. She lives alone and was receiving help and support from her family. Mrs X and her sister have power of attorney for Mrs Y’s finances and her health and wellbeing.
11. Mrs X states the Trust told her that as Mrs Y owned her own home she would have to pay for her care and did not provide any other advice. The Trust’s records of the conversation show it suggested Mrs X arrange a carer to visit Mrs Y of a morning to make sure she had taken her medication, and to help about her home. The Trust advised Mrs Y would need a financial assessment if she needed services contracted through the Trust. The notes record Mrs X stated Mrs Y would be above the threshold.
12. Mrs X contacted the Trust again in early August 2019 to ask for assistance in getting funding for Mrs Y to go into a care home for respite. Mrs X had arranged for carers to support Mrs Y at home, but this was too expensive, and Mrs Y could not afford to continue this service. The Trust told Mrs X that Mrs Y did not meet the criteria for support for a care home placement.
13. Mrs X requested a social care assessment for Mrs Y and told the Trust she had arranged for Mrs Y to have six weeks respite at a care home from 12 August 2019. The family were also now considering long term care.
14. An officer visited Mrs Y and Mrs X on 7 August 2019. The records of this visit note that Mrs Y would be eligible for support with her medication and that a carer could stay with her three mornings a week while Mrs X had a shower. The notes also record that Mrs Y stated she did not want to go to day care, respite or have carers at home, but wanted to take the pressure off her daughters and move into a home long term.
15. In terms of what needed to happen next, the notes state Mrs X and her sister were “still choosing for [Mrs Y] to move into [the care home] and have declined care at home at this point.” The officer recommended that should Mrs Y return to live at home, Mrs X request an assessment of her care needs.
16. According to the notes, Mrs X stated they would have had care at home, but felt she had been misadvised regarding this in her previous call to the Trust. Mrs X now felt committed to the placement at the care home. The officer agreed to check whether the Trust could contract two weeks respite on the grounds it would take the pressure off Mrs X and the family while Mrs X was away.
17. The officer subsequently advised Mrs X the Trust had declined to contract respite as Mrs Y had said she did not want respite but wanted to move into care long term. Mrs X told the officer she viewed the stay at the care home as six weeks respite and that she was unhappy the Trust had misinformed her Mrs Y would have to pay for her care at home.
18. On 16 August Mrs X complained to the Trust about the information provided in her initial telephone call. Based on this conversation Mrs X had felt she had no option but to arrange for Mrs Y to go to a care home. This was intended to be respite care while Mrs X and her sister were on holiday. She asserted that had the Trust told her that Mrs Y could receive financial assistance with care at home they would have chosen this option. She asked the Council for help in funding Mrs Y’s respite care. The Trust did not respond at this stage.
19. Mrs X contacted the Council again in early September as Mrs Y wanted to return home with a package of care. The officer visited Mrs Y and Mrs X at the care home to discuss this, then liaised with brokerage service to arrange a package of care.
20. The care home confirmed it had assessed Mrs Y as lacking capacity to make decisions around her care and had put Deprivation of Liberty Safeguards in place. The officer also had concerns about Mrs Y’s capacity and visited Mrs Y again on 20 September 2019 to complete a mental capacity assessment. The officer assessed that Mrs Y lacked capacity to make an informed decision and concluded it would be in Mrs Y’s best interests to return home with a package of care.
21. A financial assessments and benefits (FAB) officer carried out an assessment of Mrs Y’s finances on 9 September 2019. The FAB officer confirmed Mrs Y’s capital was below the threshold for assistance and calculated her weekly contribution for care at home would be £55.36. This was a provisional assessment as Mrs X was considering buying in day care services which would reduce Mrs Y’s contribution. The notes show Mrs X had initially thought Mrs Y’s property would be included in the assessment. The FAB officer confirmed Mrs Y’s property would only be included in the assessment if she met the criteria for long term residential care.
22. The FAB officer carried out a further assessment on 30 September 2019 and calculated Mrs Y’s weekly contribution for non-residential care would be £6.36, and £212.34 for residential care. Mrs Y returned home on 30 September 2019 with a package of care in place.
23. The Trust responded to Mrs X’s complaint on 31 October 2019. It apologised for the miscommunication in her initial telephone call and acknowledged it had not provided the required or correct information. The Trust confirmed that when considering financial support for domiciliary care Mrs Y’s property would be disregarded, and that Mrs Y would have been eligible for financial support.
24. In recognition of this miscommunication, the trust offered to reimburse Mrs Y for the package of care she received from the date of the call until 12 August 2019, when she went to the care home. This reimbursement would be less Mrs Y’s contribution of £6.36 per week.
25. In relation to the cost of the placement at the care home, the Trust noted the assessment of needs on 7 August 2019 determined Mrs Y was not eligible for a long-term residential placement. The Trust asserted that at this stage it had corrected the miscommunication and Mrs X could have cancelled the placement at the care home. It stated it could have completed the financial assessment and organised domiciliary care at home before 12 August 2019. But neither Mrs X nor Mrs Y wanted a package of care at home at that time, and Mrs Y was adamant she wanted to reside at the care home on a long-term basis.
26. Mrs X was not satisfied with the Trust’s response and asked the Trust to reconsider its decision. She did not accept there was sufficient time to complete the financial assessment and set up a care package before she and her sister went away on 13 August 2019. It was therefore necessary to go ahead with the respite placement at the care home.
27. Mrs X also questioned the Trust’s acceptance of and reliance on Mrs Y’s wish to stay at the care home long term. She noted it was clear at the meeting on 7 August 2019 that Mrs Y had dementia, she was unable to remember what she had agreed and would change her mind within minutes. Mrs X disputed that any decisions the Trust made based on what Mrs Y had said regarding her care could be seen as valid.
28. The Trust discussed the matter with Mrs X and advised it stood by its investigation of the complaint and the outcome. However, as a gesture of goodwill it offered to reimburse Mrs Y for two weeks of her placement at the care home. The reimbursement would be at the Trust’s fee rate of £593 per week, rather than the weekly rate of £850 Mrs Y had paid, and less Mrs Y’s assessed contribution of £212.34 per week. This equated to a reimbursement of £761.32.
29. Mrs X considers the Trust’s offer is inadequate and has asked the Ombudsman to investigate. Mrs X maintains that had the Council provided full and accurate information at the outset Mrs Y would have received a package of care at home, at a significantly lower cost than she has paid for the care home.
30. In response to my enquiries the Trust acknowledged it was unclear what financial advice it gave Mrs X at the beginning of the process, but states she was subsequently given correct information on several occasions. It notes the Trust made it clear to Mrs X at the assessment that Mrs Y would not meet the criteria for local authority funding, but Mrs X still went ahead with the care home placement.
31. It also acknowledged it should have carried out a capacity assessment around Mrs Y’s care and accommodation sooner in the process and apologised for this. However, the Trust asserts there is no evidence to suggest it would have made a different decision via a Best Interest decision. The Trust maintains its position that it had rectified the initial miscommunications and provided all necessary financial information before Mrs Y’s placement at the care home began, and Mrs X could have chosen to cancel it.

Analysis

32. It is unclear from the Trust’s records exactly what advice and information it gave Mrs X in her initial call. But the Trust accepts it did not provide the required or correct information regarding funding Mrs Y’s care at home. This failure to provide full and accurate information amounts to fault.
33. I also consider the Trust’s failure to consider Mrs Y’s mental capacity during the first meeting to be fault. The notes of this visit are recorded on a template form which prompts consideration of the mental capacity act. But there is no evidence the officer considered Mrs Y’s capacity to make or understand decisions regarding her care. The Trust was aware Mrs Y has a diagnosis of vascular dementia and Mrs X had confirmed Mrs Y was very forgetful and not aware of the time or date. I would therefore have expected the Trust to satisfy itself of Mrs Y’s capacity to understand and make decisions regarding her care from the outset.
34. Having identified fault, I must consider whether this has caused Mrs Y a significant injustice. Had the Trust provided full and accurate information on 16 July 2019 Mrs X could have made an informed decision regarding Mrs Y’s care. I consider it more likely than not that but for this fault Mrs X would have arranged for care at home, rather than respite at the care home. This option would have been significantly cheaper for Mrs Y.
35. In addition, had the Trust considered Mrs Y’s capacity to make decisions about her care at the outset, it is arguable its decision on whether to fund respite care would have been different. The Trust’s refusal to fund respite was on the basis of Mrs Y’s express request for long term residential care, which she did not meet the criteria for. As Mrs Y does not have capacity to make decisions regarding her care this should not have been the sole, or main factor in the Trust’s decision.
36. I welcome the Trust’s offer to reimburse Mrs Y for the cost of her care at home (less her contribution) between 16 July and 12 August 2019. I consider this to be an appropriate remedy for this element of Mrs Y’s injustice.
37. I also consider the Trust’s offer to reimburse the cost of two weeks respite care to be appropriate. I am not persuaded, and there is no evidence to suggest, the Trust could have assessed Mrs Y’s finances and arranged a package of care in the five days between the assessment on 7 August 2019 and 12 August 2019 when the respite care was due to start. Mrs X and her sister both went away on 13 August 2019, and in the absence of any other care or support for Mrs Y I am satisfied the respite placement was necessary.
38. However, I do not consider the Trust should reimburse Mrs Y for the full period of respite. While I do not consider there was sufficient time to arrange care at home before Mrs Y went to respite, it should have been possible to arrange this within the following couple of weeks.
39. Mrs X was away from 13 to 16 August 2019 and then from 13 to 29 September 2019. I recognise staying at the care home from 12 August to 30 September 2019, rather than returning home between Mrs X’s holidays was convenient and minimised any disruption for Mrs Y. But I do not consider it was necessary. Mrs Y could have returned home and had time to settle into a package of care before Mrs X went away again in September 2019. This would have significantly reduced Mrs Y’s care costs.
40. The Trust has offered to reimburse two weeks respite care at its structured rate. However, I consider it should reimburse Mrs Y at the rate she paid, less her social care contribution. That is £850 less the contribution of £212.34 per week. This gives a total for two weeks of £1,275.32. It is not possible to say at this stage whether the Trust could have identified, with five days’ notice, a suitable care home with availability which would have accepted the Trust’s rate.

Agreed action

41. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the service provided by Torbay and South Devon NHS Foundation Trust, I have made recommendations to the Council.
42. The Council has agreed to:
• Reimburse Mrs Y £515.36 in respect of the cost of her domiciliary care at home for the period 16 July to 12 August 2019, less her social care contribution;
• Reimburse Mrs Y £1,275.32 in respect of the cost of two weeks respite care, less her social care contribution.
43. The Council should carry out these actions within one month of the final decision on this complaint.

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Final decision

44. The failure to provide full and accurate information regarding Mrs Y’s eligibility for financial assistance with her care amounts to fault. As does the failure to carry out a mental capacity assessment at the outset. These faults have caused Mrs Y an injustice.

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Investigator's decision on behalf of the Ombudsman