Summary: There is no evidence of fault on the part of the Council in the way it charged the late Mr X for his care.

The complaint

1. Mr A and Mrs A complain that the Council incorrectly charged them for periods of care for Mr X (Mrs A’s late father) when they believed he was eligible for rehabilitation funding.

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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. 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

3. I considered the information provided by the Council and by Mr and Mrs A. Both parties had an opportunity to comment on this draft statement before I reached a final decision.

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What I found

Relevant law and guidance

4. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees.
5. 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 themselves.
6. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA),” which replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves.
7. If there is a need for continuing decision-making powers and there is no relevant EPA or LPA, the Court of Protection may appoint a deputy to make decisions for a person.

What happened

8. Mr X had been living at home with carers attending him several times a day before he was admitted to hospital in April 2018. (He had previously had six weeks of Council-funded reablement care from December 2017 to January 2018). The Council says it was already concerned about his welfare because of the condition of his home and his inability to cope. Mr and Mrs A agreed he should be discharged from hospital in May 2018 to a residential care placement (care home 1). He was admitted to care home 1 on 9 May for a period of assessment.
9. Mr X had assets in excess of the upper financial threshold. A social worker explained to Mrs A on 17 May that, as no-one held power of attorney for Mr X, the Council would apply for deputyship to manage his benefits and access his bank account once a residential placement was made permanent.
10. On 5 July a Best Interest assessor assessed Mr X’s capacity to manage his own finances and concluded that he had capacity to do so and agreed that his daughter (Mrs A) should assist him.
11. On 2 August Mr X suffered a stroke and was admitted to hospital. As it was unclear when he would be able to return to care home 1, the Council terminated the temporary placement there on 08 August. The Council wrote to Mr X on 13 August explaining that he would pay the full cost of his care.
12. On 28 August Mr X was discharged from hospital to an Acquired Brain Injury (ABI) unit for rehabilitation where his care was funded for six weeks by the NHS. At a review meeting on 21 September a social worker explained to Mr X that he had two further weeks stay on this unit but after that would need to be discharged elsewhere. The Council’s records show the social worker discussed with Mrs A the options for choosing another care home.
13. The Council’s records also show that in the absence of anyone with authority to manage Mr X’s finances, the Council agreed to commission care for him on a short-term basis. The care homes which Mrs A preferred were not able to offer Mr X a place in time for his planned discharge date of 05 October. The Council arranged for Mr X to stay a further week at the ABI unit at a self-funded rate of £1200. It arranged for the manager of care home 1 to assess Mr X and then arranged his return there on 12 October.
14. On 14 October Mr X was taken ill and readmitted to hospital. He died on 15 November. Mr X’s needs assessment contains the following update: ‘(Mr X) was assessed by (another care home) at the request of his daughter so that he could be cared for closer to where she lives. (Mr X) was declined on the basis that he required a level of support, especially around feeding and mobility that they did not feel able to deliver. This caused a delay as no alternative placement was identified at a late stage. (Mr X) remained at the ABI unit for a further week at a cost of £1200 whilst (care home 1) assessed and equipment was ordered’.

The complaint

15. In January 2019 Mr A telephoned the Council’s finance department and complained about the charge for the week’s additional placement at the ABI unit. The Council’s records note Mr A’s views that the cost at the ABI unit was £1200 instead of £523 at care home 1 and he said the family had been given little notice to move Mr X from the ABI unit.
16. The social worker noted on the file, “When the decision was for [Mr X] to remain in 24 hour care, his daughter approached two local homes however they took some time to assess and then declined to care for (Mr X). Daughter was informed that there was no time for (care home 1) to assess for him to return and was provided with the non-rehab weekly rate of £1200. We arranged as soon as we could for (Mr X) to then be discharged to (care home1) (where he had been residing prior to his stroke)”.
17. On 8 March the Council responded to Mr A’s complaint. It said “(Mr X) overstayed as family did not find a placement in time for his dischargefrom the rehab unit, therefore Luton Council commissioned a further week in (the ABI unit) with the agreement of the family. There is evidence on the council database that the allocated social worker at the time informed the family of the cost of the placement…..(Mrs A) was informed that there was no time for (care home 1) to assess (Mr X) to return and was provided with the non-rehab weekly rate of £1200”.
18. Mr A complained again to the Council. He said the Council had discharged Mr X into care home 1 in May without proper consultation with them. He said the social worker had given them the impression the Council would fund his care for the first few weeks. He said the Council then moved Mr X back to care home 1 from the ABI unit on the same day another home (closer to where Mrs A lived) agreed to take him. He said they had never been told how much the rate was at the ABI unit.
19. The Council responded that Mr X had not been eligible for a reablement package of care (which would have been free of charge for six weeks) as his needs were above the threshold.
20. Mr and Mrs A complained to the Ombudsman. Mrs A says they always knew they would have to pay for Mr X’s care but there were discrepancies between what they were told and the bills they then received.
21. The Council says although the NHS paid for the first six weeks of Mr X’s care at the ABI unit, as he overstayed because there was no placement arranged to receive him, he was charged the full cost of the additional week’s placement.

Analysis

22. There was no reason why Mr X should have been eligible for a further period of funded reablement care. I have not seen any evidence that the Council led Mr and Mrs A to believe that was so.
23. It was clear from the social worker’s conversations with Mrs A that Mrs A was aware her father would fund his own care. Mrs A acknowledges that was so.
24. I have not seen written evidence in the social work case recording that the social worker told Mrs A the cost of a further week’s care in the ABI unit would be £1200. However, while the high cost was a shock to Mr and Mrs A and came at a time when they were seeking to find a suitable placement for Mr X, I cannot see any evidence the Council was at fault here. No suitable placement had been found to take Mr X on the date the NHS-funded care finished. There was no alternative but to keep Mr X at the ABI unit until a residential care placement was arranged.

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Final decision

25. There was no fault in the way the Council acted in respect of Mr X’s care charges.

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Investigator's decision on behalf of the Ombudsman