Summary: Ms Y complained the Council allowed a friend, Ms X, to be discharged home from hospital despite her lacking capacity to make a decision about her care placement. Ms Y also complains the way the Council dealt with her and her sister over Ms X’s care home fees led unnecessarily to a safeguarding investigation. There was no fault in the Council’s actions in relation to Ms X’s discharge from hospital. The Council has already admitted it was at fault in the way it communicated over Ms X’s care home fees which caused distress. It has already apologised and agreed to make service changes to prevent a reoccurrence. The Council has also agreed to make Ms Y and Ms Z a financial payment to remedy the outstanding injustice it caused them.

The complaint

1. Ms Y complained:
• the Council allowed a friend, Ms X, to be discharged home from hospital in mid-January 2019 even though she did not have capacity to make that decision and was unable to care for herself; and
• she and her sister, Ms Z were investigated by the Council under its safeguarding duties following allegations of financial abuse relating to Ms X. Ms Y says the Council made numerous errors and failed to consider or cross-reference information they provided.
2. Ms Y said that as a result, she and Ms Z were caused undue stress and Ms X was put at risk of harm.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

7. I spoke to Ms Y and considered her view of her complaint.
8. I made enquiries of the Council and considered the information it provided. This included correspondence between the Council and Ms Y and Ms Z, Ms X’s case files and her financial assessments and details and records of the safeguarding referral and investigation.
9. I wrote to Ms Y and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

Capacity and best interest decisions

10. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
11. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary.
12. The guiding principles of the Act include ensuring the least restrictive option for care is chosen, empowerment and respect and dignity.
13. When assessing if someone has capacity, the assessment must only examine a person’s capacity to make a particular decision when it needs to be made. This is particularly relevant to people with fluctuating capacity.
14. The MCA states a person is unable to make a decision if they cannot do one or more of the following four things:
• understand information given to them;
• retain that information long enough to make a decision;
• weigh up the information; or
• communicate their decision.
15. The Code of Practice states someone may question a person’s capacity to make a decision if someone else says they are concerned about that person’s capacity.

Safeguarding

16. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean they cannot protect themselves. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (s42, Care Act 2014).

Lasting power of attorney and deputyship

17. A Lasting Power of Attorney (LPA) is a legal document that allows someone to choose who they would like to make decisions for them in the future, if they cannot make them themselves. If a person does not have a LPA and lacks capacity, then an application to the Court of Protection to appoint a deputy to manage the person’s affairs must be submitted.

Paying for care

18. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out a council’s duties towards adults who require care and support and its powers to charge.
19. Where adults receive care and support from councils, they normally do so under the provisions of the Care Act 2014 and may have to pay for them, depending on financial eligibility criteria.
20. Where a council has decided to charge it must carry out a financial assessment of what the person can afford to pay (Care and Support Statutory Guidance, section 8.16)
21. In assessing what a person can afford to contribute a local authority must apply the upper and lower capital limits. A person with assets above the upper capital limit will be deemed to be able to afford the full cost of their care.
22. If someone does not wish to undergo a full financial assessment, the council can charge for the full cost of the care.

What happened

23. On 1 January 2019 Ms X was admitted to hospital following a fall and increased confusion.
24. The social worker met with Ms X on 9 January, as she was considered medically fit for discharge. The care notes record Ms X was able to communicate effectively about her care and health needs and retain past events. The social worker recorded “Although there are concerns of a cognitive impairment [Ms X] presented with insight and that she understood the conversation we were having, I feel she would be eligible to engage [in] therapy and retain information”. The social worker did not carry out a mental capacity assessment.
25. Ms Y and Ms Z were concerned about Ms X’s discharge home. They wanted her to have a 24 hour package of care in place or to be admitted to a care home. Ms X’s discharge was delayed to address these concerns.
26. The social worker held a meeting on 11 January which was attended by Ms Y and Ms Z, the Occupational Therapist (OT), the ward matron and a hospital doctor. The OT advised Ms X should return home with enablement services. The ward matron and doctor both considered the hospital setting might be adding to Ms X’s confusion and some behaviours. The doctor though Ms X’s hallucinations may be because of a medical issue with her eyes.
27. The social worker recorded in the case notes that she informed the family she had spoken to Ms X whose wish was to return home. Therefore, the social worker considered a placement at a care home would be the most restrictive option and against Ms X’s wishes. The social worker also thought a care home could worsen Ms X’s confusion.
28. The social worker arranged for an enablement service to assess Ms X at home on the day she was discharged. The case notes record she discussed night time care with Ms Y and Ms Z. The social worker recorded that she told them Ms X did not require this but that if the family wished to pay privately then a care company could provide night time cover from 22 January. It was agreed friends would stay over at night with Ms X to monitor whether she slept through the night or whether night care would be required.
29. Ms X was discharged home on 14 January. The following morning when the enablement service arrived, they discovered she was not at home. Ms X was reported as having made her way to a police station where she said she was ‘in fear of her life’. She was readmitted to hospital that same day.
30. The hospital social worker carried out a mental capacity assessment on 31 January. This concluded Ms X lacked capacity to decide about her care placement. The Council made a best interest decision in consultation with Ms Y and Ms Z and Ms X was discharged to Care Home A for an initial 6 week stay.
31. The fees for Care Home A were £1,000 a week which were higher than the Council’s upper threshold of what it would pay for care. The case notes and other documentation record the Council agreed to pay £850 and Ms Z and Ms Y agreed to top-up the remaining £150.
32. On 8 February, Ms Z and Ms Y asked the Council for a copy of Ms X’s contract with Care Home A. The Council failed to send this until October.
33. On 12 February, the Council sent Ms X a financial assessment letter. This explained an assessment was required to decide if she could afford to contribute towards the costs of her care.
34. On 25 February, the social worker asked Ms Z and Ms Y who was managing Ms X’s finances. The social worker said the manager at Care Home A thought one of them may have Lasting Power of Attorney (LPA) but if that was not the case, the Council would have to apply to the Court of Protection for deputyship for Ms X. Ms Z said she and Ms X’s sister were planning to apply for LPA and confirmed she and Ms Y were happy to continue to pay Ms X’s £150 top-up.
35. On 15 April, the Council carried out a financial assessment with Ms X. Ms Y was also present. Ms X stated she owned her own home and she did not wish to disclose any financial information but would instead pay for the full costs of her care. The Council sent her a letter saying she was responsible for paying the full cost of her care at Care Home A from 31/1/19.
36. On 23 April, Ms Z and Ms Y received an email from Care Home A to say the Council had taken back the money it had paid for Ms X fees (approximately £12,000). Care Home A said it would recoup these fees from Ms X.
37. On 1 May Ms X moved from Care Home A to Care Home B for her long-term placement.
38. On 16 May, Ms Z asked for an urgent meeting to discuss the fees for Care Home A. Ms Z received an email from a Council officer asking for time to establish the facts and also questioning if Ms Z had consent from Ms X. Ms Z responded and explained she was in the process of applying for LPA.
39. On 31 May, the social worker emailed Ms Z and said a senior colleague had visited Ms X at Care Home B and Ms X had told Officer H that she wished to manage her finances independently and liaise directly with the Council over her outstanding fees. The social worker told Ms Z that she should withdraw her LPA application.
40. Ms Z emailed the social worker and said she would withdraw the LPA application, which she did on 2 June.
41. In June 2020, the Council received a safeguarding referral from Care Home A alleging financial abuse by Ms Y and Ms Z. Care Home A said they had not paid the outstanding fees owed for Ms X’s placement.
42. In June, Ms Y also complained to the Council about the matters in paragraph 1.
43. In July, the Council decided to proceed to a full safeguarding enquiry.
44. In August a safeguarding outcome meeting was held. Attendees included a number of Council officers from safeguarding and finance, staff from Care Home A and Ms Y and Ms Z. This concluded there was no evidence that financial abuse had occurred. It was found that the Council had failed to communicate properly with Ms Y and Ms Z. As a result, this had led to confusion over the amount and to whom the outstanding fees should be paid.
45. In September, the Council responded to Ms Y’s complaint and made the following points:
• Ms X was assessed and deemed to have capacity each time a decision on her care or finances was required;
• whilst in Care Home A, the Council took too long to provide Ms X with information about paying for her care and in carrying out a financial assessment; and
• the Council wrongly failed to send Ms Z a copy of Ms X’s contract with Care Home A as she requested.
46. In relation to the safeguarding issues, the Council said following an email from Care Home A to say Ms X’s fees had not been paid, the Council raised a safeguarding concern. The safeguarding social worker contacted Ms Z the following day and said she would be closing the case. However, a senior manager then recommended the case be progressed to a full investigation. This concluded there was no evidence of financial abuse by Ms Z and Ms Y but that the Council was at fault because Ms Y and Ms Z “signed a third party top up agreement but never received a placement agreement [contract], which resulted in them not being fully informed of their obligations”.
47. The Council concluded by stating there was a significant delay in sending Ms Z and Ms Y the contract and it “deeply apologised for this poor communication on our part”. The Council said it would make service improvements to ensure information about the financial assessment would be shared in a timely manner in future and contracts were sent out immediately a service user moved to a new placement.
48. Ms Y and Ms Z were unhappy with the Council’s response. They said Ms X did not have capacity to make a decision about her care when she was discharged from hospital on 14 January 2019. They included an email from Ms X’s social worker dated 31 January which said “We are of the opinion that [Ms X] currently lacks capacity to make a decision regarding her discharge destination… We are in agreement that [Ms X] cannot be discharged to her own home due to the increased risk of wandering/absconding… we have requested a series of mental health reviews over the course of the next few days”.

My findings

Decision to discharge Ms X home from hospital on 14 January 2019

49. We are not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. Our role is to review the process by which decisions are made, and, where we find fault, to determine what injustice it caused.
50. The social worker assessed Ms X in hospital. She decided that in her professional judgement, Ms X did not require a mental capacity assessment because she met the four tests in paragraph 14. When Ms Y and Ms Z raised concerns about the need for 24 hour care, the social worker called a multi-agency meeting where Ms Y and Ms Z were able to voice their opinions. The social worker explained it was her view Ms X did not require 24 hour care and a care home would be against Ms X’s wishes and be a more restrictive option. Instead, the social worker put a reablement package of care in place. This was in line with the advice from the OT. She arranged this to commence the day Ms X was discharged. She provided details of a night time care agency for the family to pursue if they wished. There was no fault in the way decisions were made in relation to Ms X’s capacity and care package.
51. The email Ms Y sent me, part of which is reproduced in paragraph 48 above, concerned Ms X’s mental capacity when she was discharged from hospital on 31 January, as opposed to the earlier discharge on 14 January. At the later discharge, Ms X was found to lack capacity and a best interest decision was made to discharge her to Care Home A in line with Ms Y and Ms Z’s wishes. This email was, therefore, in line with the decision made by the Council.

Safeguarding actions taken by the Council

52. Following a safeguarding alert from Care Home A about non-payment of Ms X’s outstanding fees, the Council decided to carry out a full enquiry. This was a decision it was entitled to take. Ms X was a vulnerable adult with care needs and her fees from Care Home A remained outstanding.
53. The Council concluded there was no evidence of financial abuse by Ms Y and Ms Z. It found that the non-payment had arisen because of its own errors in its communications with them which had led to confusion. In its complaint response, the Council again acknowledged these errors and said it had failed to provide Ms X, Ms Y and Ms Z with the financial and contractual information they should have received. The Council apologised for the faults it had made and said it would make service improvements to prevent a reoccurrence.
54. It is likely that if the Council had provided Ms Y and Ms Z with the information they requested and were entitled to, they would have paid the outstanding fees. This is supported by the fact that they paid the fees once the situation was made clear to them. This would have meant the safeguarding investigation would not have gone ahead. Therefore, Ms Y and Ms Z were caused unnecessary distress and time and trouble because of the Council’s actions.
55. The Council has already apologised and said it will make service improvements. This is not sufficient to remedy the injustice caused to Ms Y and Ms Z. The Council should make a symbolic financial payment to them to acknowledge the outstanding injustice they have experienced.

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Agreed actions

56. Within one month of the date of the final decision the Council has agreed to make a symbolic payment of £150 each to Ms Y and Ms Z to acknowledge the unnecessary distress and time and trouble it caused them.
57. Within six months of the date of the final decision, the Council has agreed to provide evidence to the Ombudsman that it has made the following service improvements around:
• sharing information about the financial assessment in a timely manner; and
• ensuring contracts were sent out immediately a service user moved to a new placement.

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Final decision

58. The Council has already admitted it was at fault and taken some steps to remedy the injustice it caused. It has also agreed to make a payment to Ms Y and Ms Z to remedy the outstanding injustice. As a result, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman