Summary: We will not investigate this complaint about adult social care charges. There is not enough evidence of fault in the care planning and financial assessment which led to the care charges. It is unlikely an investigation would lead to a different outcome.

The complaint

1. Ms B says the Council did not consult with her about placing her father, Mr C, in a care home. Ms B says she signed no agreement and is not responsible for the associated charges for care. Ms B wants the Council to waive the charges for Mr C’s residential care.

Back to top

The Ombudsman’s role and powers

2. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

3. Ms B is an executor of Mr C’s estate, so is a personal representative.
4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• any fault has not caused significant enough injustice to the person who complained to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

Back to top

How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

7. Ms B says the Council should have involved her when Mr C moved to residential care because Mr C had dementia. The Mental Capacity Act 2005 provides a framework to empower and protect people who may lack capacity to make some decisions for themselves. Mental capacity is time and decision specific, and a medical diagnosis is not evidence you cannot make any decisions for yourself. Although Ms B held a power of attorney, this only enables you to make a best interest decision for a person when they lose capacity to make that decision themselves.
8. The Council completed a mental capacity assessment with Mr C about his ability to decide how his care and support needs would be met, and whether he understood the risks if he were to return to live at home rather than in residential care. The Council decided Mr C had capacity to understand this and that Mr C wanted to remain in residential care as he would not cope at home.
9. The Council did not consult Ms B because Mr C had capacity to decide about his care. There was no need for Ms B to sign any agreement. The Council accepts it should have had better communication with Ms B and has apologised to her. But the outcome is unlikely to have been any different. Mr C needed 24-hour care and consented to the care home placement. Ms B made no complaint about the placement while Mr C lived there.
10. The Council must then do a financial assessment to decide what, if anything, Mr C must pay for his residential care. The Council correctly assessed Mr C’s finances to decide what he could afford to contribute toward the cost of his care and wrote to Ms B with the outcome shortly after the care charges started. Mr C paid a contribution, and the Council paid the rest. There is no evidence of fault in how the Council calculated Mr C’s affordable contribution. So again, the outcome is unlikely to have been any different if Ms B had been more involved.
11. No complaint was made in Mr C’s lifetime about his care home placement or the associated charges. There is no fault in the Council billing for the care Mr C received and consented to. Ms B is not personally responsible to pay these fees, but as executor of Mr C’s estate she is responsible for dealing with Mr C’s financial liabilities.
12. The Council has correctly advised Ms B that if there are not enough funds in the estate to pay the bill then she should provide evidence of that. The Council has also correctly advised Ms B that if she thinks Mr C’s care should have been funded by the NHS then she needs to apply to the NHS for retrospective funding. The Council’s charges are still due, but could be refunded, if necessary, in the future.

Back to top

Final decision

13. We will not investigate Ms B’s complaint because there is not enough evidence of fault by the Council causing a significant injustice. There is no fault in the care provided to Mr C or the associated charges. There is fault in the Council’s early communication with Ms B for which it has apologised, which is appropriate to acknowledge the impact. It is unlikely the Ombudsman could add to the Council’s investigation or reach a different outcome so there is no justification to investigate.

Back to top

Investigator's decision on behalf of the Ombudsman