The Ombudsman's final decision
Summary: There is no evidence of fault on the part of the Council in the way it arranged the late Mr X’s placement and carried out assessments of his capacity to make his own decisions about his finances.
The complaint
Mr and Mrs A (as I shall call them) complain about the way the Council managed the care of Mr A’s uncle, Mr X, in a care home. They complain the Council failed to take into account relevant factors in Mr X’s mental capacity assessments, reported Mr A to the Office of the Public Guardian (OPG) about concerns raised by the care provider, and did not keep them informed about the financial implications of Mr X’s care. They say this caused them considerable stress at a time when they were already dealing with concerns about the standard of care at the home.
The Ombudsman’s role and powers
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 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) Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. Part 3A is for complaints about care bought directly from a care provider by the person who needs it or their representative, and includes care funded privately or with direct payments using a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act).
What I have and have not investigated I have investigated this complaint against the Council. I have separately investigated a complaint about the care provider under our reference 23004704.
How I considered this complaint
I considered the information provided by Mrs A and by the Council and the care provider. I spoke to Mrs A. Both the Council and Mr and Mrs A had an opportunity to comment on a draft of statement before I reached a final decision.
What I found
Relevant law and guidance 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.
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.
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.
An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following: Does the person have a general understanding of what decision they need to make and why they need to make it?
Does the person have a general understanding of the likely effects of making, or not making, this decision?
Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
Can the person communicate their decision?
The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. An 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.
There are two types of LPA.
Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.
An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor. The Office of the Public Guardian (OPG) oversees the work of attorneys and court-appointed deputies.
What happened Mr X, was elderly, lived alone in independent living accommodation. After a fall he was discharged home from hospital with three care calls a day but was referred to the Council’s Adult Social Care team when it became clear he required 24-hour care. He was admitted to Redbond Lodge in May 2021.
The Council funded Mr X’s care fully for 6 weeks under the Discharge 2 Assess funding scheme. From the end of June the Council says the placement “was extended as a non-chargeable service” until the end of June 2022.
Mr A applied for Lasting Power of Attorney to assist with Mr X’s affairs as Mr X’s brothers were no longer able to help him.
The Council says “it was initially assumed that (Mr X) had capacity in line with the Mental Capacity Act 2005 to make decisions regarding his finances, who he wanted to share information with …and who he wished to support him to manage his finances.” It has provided case recording to evidence this. It says however that Mr X’s capacity declined.
The allocated social worker contacted Mr and Mrs A about the management of Mr X’s finances in January 2022. He explained the LPOA needed to be resolved as soon as possible. The case recording notes, “Advised (Mrs A) that this needs to be completed as soon as possible as (Mr X) is paying rent for his flat and is also liable to pay the contribution or full cost of care depending on the financial assessment. Also (his) condition can change and if delayed he will not be able to sign LPA, if his condition deteriorate. (Mrs A) said she thought the care (Mr X) receives is free, Informed her it is not as (Mr X) is in permanent residential care”.
The Council records show a complaint from Mr and Mrs A about the Council’s support of Mr X and the decision to charge Mr X. The service manager responded that until recently, Mr X had not given it permission to share details about his care or finances with Mr and Mrs A. She added however that Mr X or the relative who had been helping him with his finances previously “could have shared information with you at any time to resolve any of the issues identified around his accommodation and finances. (Mr X) could have disclosed your details to ECC, but he chose not to share this information.” She said however that as there had been a lack of clarity, and she now understood that Mr and Mrs A would be willing for a financial assessment to be undertaken, “On that basis in the interim period we have removed the full cost charge…, and whilst we wait for you to provide sufficient information to enable a full financial assessment to be completed the Council is not expecting the previously invoiced amounts to be paid.”
In February 2022, the social worker carried out a mental capacity assessment which showed Mr X did not have capacity to manage his finances. The capacity assessment showed Mr X could not remember the name of the relative he said was helping him with his finances (Mr A); he was unaware that he would have to pay for his care in the care home, which he thought was a hospital; could not remember how much rent he was paying for his flat, and could not remember the name or role of the social worker carrying out the assessment. He could not retain or weigh up information.
As Mr X was continuing to pay rent on his flat, and was now in permanent residential care, the social worker emailed Mr and Mrs A again in May and asked for an update on Mr X’s flat and on the LPOA application. He emailed again in June to say he would be carrying out a further mental capacity assessment. Mrs A replied. She said it was “outrageous” to suggest Mr X lacked capacity, he was just occasionally hard of hearing, and they objected very strongly to the Council’s decision to undertake a capacity assessment.
In June the finance officer contacted Mr and Mrs A to ask about the commencement of charging as she understood Mr X had finished paying rent on his flat. Mrs A responded that they would start paying the full cost from 1 July and that Mr X had assets over the threshold amount and would not require a financial assessment.
Mr A obtained LPOA.
The OPG referral and the complaint In December the care home administrator contacted the social worker. She said during a recent visit Mr A had shared with her that he had contacted a solicitor because Mr X’s will needed updating. She added, “I raised the question of (Mr X’s) capacity to make any changes. (Mr A) said that you had visited (Mr X) a couple of weeks ago & stated that he did have this capacity.” She asked for confirmation.
The social worker wrote to Mr A. He said he had assessed Mr X as lacking capacity to manage his finances. He said changing Mr X’s will in the circumstances was a safeguarding concern which he had to report to the OPG and he advised no further action until that office had responded.
Mr A complained to the Council, about the actions of the social worker in reporting the matter to the OPG, about a recent fall suffered by Mr X at the care home, and about the costs of Mr X’s fees at the care home going forward.
The Team Manager replied. She said Mr X had assets above the threshold at which he would fund his own care. She said the Council had not charged Mr X until 1 July 2022 but now that he (Mr A) had LPOA and was able to arrange Mr X’s care in the care home, the Council had no further duty at present and the contract for care would be a private matter between Mr X (or his representative) and the care provider from January 2023. She said this was in accordance with the Council’s charging policy and with the Care Act.
The team manager said the social worker had raised a safeguarding enquiry about the fall. She acknowledged Mr A’s unhappiness that the social worker had contacted the OPG, but said the Council had a duty to do so given the concerns raised.
Mr A also raised concerns that the care home fees had risen substantially once the care provider was aware Mr X would be funding his own care. He asked what would have happened if a financial assessment had been completed by the Council. The social worker replied “I usually recommend undergoing financial assessment and ECC contract if the adult’s savings are under 60 k and or need a deferred payment in a year time. At present (Mr X) is assessed as lacking capacity to manage his financial affairs, so it is the decision [of the] LPA to agree the rate or refuse the rate provided by the care home.”
Mr X died in Spring 2023.
Mr and Mrs A complained to the care provider about the way in which the administrator had reported Mr A’s passing statement about the will needing updating to the Council. Mrs A says the will needed updating because one of the executors named would no longer act in that capacity. They also complained about the increase in the charges once Mr X became a self-funding resident.
Following a response from the care provider, Mr and Mrs A complained to the Ombudsman. They said the actions of the care provider and the Council had caused them needless stress and taken up considerable time which they should have used on resolving other issues such as Mr X’s hearing aids and wheelchair. They said the Council only appeared concerned about Mr X’s finances and the social worker was insistent Mr X lacked capacity, which they disputed.
Analysis It was not fault on the part of the Council to carry out a mental capacity assessment when a decision had to be taken about Mr X’s finances. The assessment shows the social worker wrote some questions down as Mr X was hard of hearing. He explained details several times. Mr X was unable to retain the information for long enough to reach a decision. There is no evidence of fault in the way the capacity assessment was conducted.
The Council offered Mr and Mrs A the opportunity for a financial assessment but they refused. The Council explained it had no further duty to be responsible for Mr X’s care as Mr A in his capacity as LPOA was acting for him. There is no evidence of fault in that respect.
Once the care provider had alerted the social worker to concerns about Mr X’s will, it was not fault for the Council to contact the OPG. The care provider had raised queries about Mr A’s reported assertion of Mr X’s capacity which ran counter to the capacity assessments which had been properly undertaken.
Final decision
I have completed this investigation on the grounds there was no fault by the Council.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman