Summary: Ms X complained the Council failed to assess care needs and costs for her uncle, Mr Y, when he moved into a care home. The Council did not follow the correct process in its assessments, complete these in good time, or keep Mr Y and his family updated. This caused avoidable distress, confusion, and time and trouble, for which the Council agreed to apologise and pay a financial remedy to Mr Y and his family. It also agreed to issue reminders to its staff and review its procedures.

The complaint

1. Ms X complained on behalf of her uncle, Mr Y. She said the Council failed to assess Mr Y’s care needs and how much he would need to contribute towards his care costs, after he moved into a care home in January 2021. She said the Council did not keep the family updated, only started its assessments after she complained to the Ombudsman, and took too long to respond to her complaint.
2. Because of this, Ms X said Mr Y did not receive the care and support he needed and had to pay extra costs himself. Ms X said trying to resolve the issues took time and trouble and caused distress to family members. She wanted the Council to:
• provide clear information to the family about its assessments of Mr Y's needs and finances;
• consider Mr Y’s hearing loss as part of its needs assessment if it had not already done so;
• apologise for its mistakes and explain how it would ensure these issues did not reoccur, and;
• pay the extra costs Mr Y incurred due to the delays.

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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 may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
5. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
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. I considered:
• information provided by Ms X;
• documentation from the Council about Mr Y’s care and associated charges;
• relevant law and guidance, and;
• the Ombudsman’s Guidance on Remedies.
8. Ms X and the Council had an opportunity to comment on my draft decisions. I considered any comments received before making a final decision.

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What I found

Mental capacity

9. 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 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.
10. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. If someone’s capacity is in doubt, the council must assess their ability to make a decision. An assessment of someone’s capacity is specific to the decision to be made at a particular time. How it assesses capacity may vary depending on the complexity of the decision.

Care assessment and planning

11. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
12. The Care Act 2014 sets out various legal requirements about the assessment process, including that Councils must:
• arrange for an independent advocate to help the person in the assessment process, if they have difficulty being involved and no one is available to support them and represent their wishes;
• carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs;
• tell people when their assessment will take place, and keep them informed throughout the assessment, and;
• provide a written record of the assessment to the individual and any other person they might want involved.
13. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.

Charging for care

14. The Care Act 2014 provides a single legal framework for charging for care and support under sections 14 and 17. It enables a council to decide whether to charge a person when it is arranging to meet a person’s care and support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
15. The Care Act 2014 says where a council has decided to charge, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment.
16. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person has to pay towards the cost of their residential care.
17. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person is entitled to access council support to meet their eligible needs. People who have over the upper capital limit are expected to pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.

COVID-19 funding

18. In response to the COVID-19 pandemic in early 2020, the Government issued new guidance on hospital discharge to the NHS and councils, called “Hospital Discharge Service: Policy and Operating Model”. The Government updated the guidance in August 2020.
19. The guidance included the following key points:
1. the Government provided funding via the NHS, to help cover the cost of certain social care services for up to six weeks following discharge from hospital;
2. this “discharge to assess” (DTA) model required hospitals to discharge patients as soon as they no longer needed to be in hospital, even if they were not yet ready to return home;
3. the extra funding, which I shall call COVID-19 funding going forward, was for services aimed at post-discharge recovery while councils assessed the person’s long term needs;
4. the DTA model had four “pathways”, 0-3. Pathway 2 was for people who needed rehabilitation or short-term care in a 24-hour bed-based setting;
5. organisations had to continue meeting their duties under the Mental Capacity Act 2005;
6. all people (or their representatives if they lacked capacity) must have been provided full information about what was happening including how their needs would be assessed and whether any charges would apply to their care and support;
7. for people discharged on pathways 1-3, services providing care extra to that which was in place pre-admission would be at no cost to the individual for up to six weeks; and
8. on rare occasions that a council did not complete a person’s assessment within six weeks, the parties paying for the care should continue to do so until the relevant care assessments were complete.

The Council’s policy

20. The Council’s policy says it will:
• Carry out a care assessment to decide whether an adult has needs for care and support. Where there are concerns about a person’s capacity it will provide extra support throughout the assessment process.
• Provide a care and support plan and involve the individual and/or their family throughout the planning process. It will keep care and support plans under review and re-assess the individual if their circumstances change.
• Provide a personal budget for people with care and support needs and ensure the process used to decide the personal budget is transparent.

(Stockport MBC Policy for Care Act Assessment, Eligibility, and Care and Support Planning, section 3)

21. The Council’s policy says if a care home stay is temporary but expected to last more than 28 days, it will allow for certain household expenses such as rent and council tax when working out care charges. If the stay in the care home is going to be permanent but the resident does not own a property, the Council will still allow for these household expenses six weeks from the date the placement is made permanent. This is to give time to end a tenancy. The Council does not allow for council tax for this six-week period because the resident is not liable to pay it once the placement is made permanent.

(Stockport MBC Charging Policy for Residential and Nursing Care Homes, section 16)

What happened

Care assessment and planning

22. In late 2020, Mr Y went into to hospital. At the time, he rented his home from the Council and carers visited him at home.
23. When Mr Y was in hospital, temporary COVID-19 guidance described at paragraphs 18 and 19 was in place. The NHS assessed his mental capacity to decide about his care and accommodation needs, ready for his discharge. It found he did not have capacity to decide and that he should be discharged to a short-term high-dependency care home placement, under pathway 2 of the Discharge to Assess model described at paragraph 19. The Council completed a care needs assessment and support plan on that basis.
24. The Council tried to contact Mr Y’s sister as his recorded next of kin on the day of its needs assessment but had the wrong contact details. The next day it spoke to his neighbour, who had helped him when he was admitted to hospital. Mr Y’s neighbour confirmed they were aware of the plan to discharge Mr Y to a short-term care home placement.
25. In mid-January 2021 Mr Y was discharged to a care home. The Council told Mr Y’s next of kin where he was being discharged to on the day, having got correct contact details from his neighbour. One week after his discharge, the Council told Mr Y’s neighbour it would allocate a social worker to arrange long-term plans for Mr Y. Mr Y received six weeks of COVID-19 funding, which was due to end in late February 2021.
26. In early March 2021, after his COVID-19 funding ended, the Council asked Mr Y whether he wanted to leave or stay in the care home. The Council said at this point it believed Mr Y had mental capacity to decide this, but he did not know what choice he wanted to make. With Mr Y’s consent, the Council spoke to his neighbour, and told them it would allocate a social worker to review his care needs and arrange long-term plans.
27. Mr Y’s neighbour chased up the Council two months later, as they had not heard anything. The Council then visited Mr Y intending to review his care needs. Mr Y was still unable to decide where he wanted to live so the Council told him it would speak to him again in a week or so. A couple of weeks later the Council asked Mr Y’s neighbour and care home staff to speak to him about his decision and said it would follow up on this later.
28. Mr Y’s family contacted the Council to ask for an update six weeks after this. They told the Council Mr Y was still paying rent for his unoccupied home but expressed concerns about him going home. The Council said it would need to review Mr Y’s needs and assess where he should live long-term before he could decide to end the tenancy on his home. It said it would escalate Mr Y’s case for review and asked the family to contact the Council again in two weeks if it had not updated them.
29. The family chased up the Council six weeks later as they had heard nothing further. The Council told them Mr Y’s review was delayed due to staffing challenges. It said it would allocate a social worker to Mr Y as soon as possible.
30. Ms X complained to the Council four weeks later. The Council allocated Mr Y a new social worker two weeks after it received the complaint. The Council responded to Ms X’s complaint five weeks after receipt and said it had allocated a social worker who would review Mr Y’s care needs. Mr Y and his family then decided to end his tenancy on his unoccupied home due to concern about the financial implications. The tenancy ended in early October 2021.
31. Once Mr Y returned to the care home following a short hospital stay, the Council visited him intending to review his care needs. Mr Y was still unable to decide where he wanted to live so the Council spoke to him again the following week. It agreed with Mr Y it would arrange a visit with his family present to help him decide. This visit took place four weeks later once Ms X had returned from a trip out of the country. Mr Y decided to stay in the care home. The Council said it considered Mr Y had capacity to make this decision from the point it first asked him in March 2021, but this November meeting was the first date he knew what choice he wanted to make.
32. In early January 2022, the Council completed its review of Mr Y’s care needs to support an application for long-term funding of his care home place. It produced an associated care and support plan in late January. The Council agreed funding for a long-term care home place for Mr Y in early February 2022.

Charging for care

33. The COVID-19 funding for Mr Y’s care home place ended in late February 2021. From February to August 2021, the Council sent multiple letters to Mr Y at his unoccupied home address about his financial assessment and care charges. During this time, Mr Y’s neighbour and his family told the Council on multiple occasions not to write to him at this address and raised multiple queries about his care charges and financial position.
34. In early August 2021, the Council amended its records to use Mr Y’s care home address and sent Ms X financial assessment forms to complete on his behalf. The Council completed a financial assessment in late August based on the information returned by Ms X and wrote to Mr Y at the care home about this. This assessment did not account for Mr Y’s rent and bills paid on his unoccupied home because Ms X had not declared this. Ms X put in corrected forms in early September. It was after this that Mr Y and his family decided to end his tenancy on his unoccupied home.
35. The Council contacted Miss X five weeks after she submitted corrected assessment forms and said if she provided the necessary financial evidence, it would re-assess Mr Y’s finances and care charges on the basis that:
• his capital funds fell below the upper limit, as described at paragraph 17, in late April 2021, and;
• he was paying rent and bills for his unoccupied home until the tenancy ended in early October 2021.
36. There followed a five-week period where Ms X had multiple contacts with the Council about the necessary financial evidence.
37. Four weeks after its last contact with Ms X, and over two months after it responded to her complaint, the Council received notice from the Ombudsman that we would be investigating Ms X’s complaint. At this point the Council completed its re-assessment of Mr Y’s finances as described at paragraph 35. The Council wrote to Ms X to explain its re-assessment. Ms X said she did not receive this letter.
38. Once the Council had agreed funding for a long-term care home place for Mr Y in February 2022, it completed a new financial assessment for this long-term place. It wrote to Ms X with details of this new assessment. Ms X said she did receive this letter.

My findings

Care assessment and planning

39. When the Council assessed Mr Y’s care needs In January 2021 to discharge him from hospital to the care home, this was based on an NHS assessment that he did not have mental capacity to decide where he should live. As described at paragraph 12, the Council should have ensured Mr Y was supported and his wishes represented in the assessment process, via a suitable representative if available, or an independent advocate if not. Although temporary COVID-19 hospital discharge guidance was in place, as described at paragraphs 18 and 19, the Council was still required to:
• meet its duties under the Mental Capacity Act 2005; and
• ensure people, or their representatives if they lacked capacity, were provided full information about how their needs would be assessed.

Although the Council was in contact with Mr Y’s neighbour and family at the time of discharge, this was after the needs assessment took place. The Council should have contacted his family before the assessment to ensure his wishes were represented and then arranged an advocate when it could not speak to them. It did not do so, which was fault.

40. As described at paragraphs 11 and 12, councils must involve and provide a written record of a care needs assessment to the individual and any other person they might want involved. The Council provided no evidence that Mr Y, or anyone acting on his behalf, agreed and signed the care needs assessments and associated care and support plans in January 2021 and January 2022. This was fault.
41. When Mr Y first went into the care home, it was not known whether he would stay in the home once his six weeks of COVID-19 funding ended. As described at paragraph 19(h), the Council should have assessed his long-term needs within six weeks. During 2021, Mr Y had three social workers. The Council accepted there were delays allocating the second and third social workers. I recognise the Council said it faced staffing pressures during this time despite its efforts to address this. However, the Council still had a duty to assess Mr Y within six weeks in line with the COVID-19 guidance and was at fault for not doing so.
42. The Council should still have updated Mr Y and his family during any delays. There were significant gaps where the Council did not contact them. Mr Y’s neighbour and his family contacted the Council multiple times to seek updates and escalation of his case. On one occasion the Council asked the family to chase it up further if they did not receive an update, which suggests it was relying on the family to chase this. The Council said it had a process in place to update individuals and their representatives during any delays and considered there were isolated issues with the duty social worker process in this case. However, the Council’s procedure for this did not work and meant Mr Y and his family were not updated. This was fault.
43. Ms X said she did not know if the Council considered Mr Y’s hearing loss as part of its assessment of his care needs. The needs assessment completed in January 2022 did state Mr Y had a hearing impairment and used hearing aids. I am satisfied Mr Y’s needs assessment did consider his hearing loss and did not identify he had any specific needs relating to this. Mr Y’s hearing loss was also referenced in March 2021 Council records, so I am satisfied the Council was aware of this early on in its interactions with Mr Y. Despite the delays and failure to arrange an advocate, there was no evidence of fault in how the Council considered Mr Y’s needs when completing its initial assessment or its review.
44. The Council did not involve a representative or advocate in Mr Y’s first needs assessment, and delayed its review of his needs beyond the six weeks required by the COVID-19 guidance. However, I do not consider this had a harmful impact on him. The Council did assess Mr Y’s needs before he went into the care home and there is no evidence his needs were not met, or he was at risk of harm. The Council could have assisted Mr Y to decide where he wanted to live sooner if there had not been delays and gaps in its contact. However, ultimately this did not impact Mr Y’s living situation as he decided to stay in the care home. I do not think there remains any uncertainty about what would have happened to Mr Y had the Council assessed his long-term needs sooner. Therefore, I do not consider this delay caused an injustice to Mr Y or his family.

Charging for care

45. The Council tried to assess Mr Y’s finances shortly after he moved into the care home. However, it wrote to him at his unoccupied home address for several months, despite Mr Y’s neighbour and family telling the Council several times that Mr Y was no longer living there. Even without the family pointing this out, the Council should not have written to Mr Y’s home address, as it had placed Mr Y in the care home and therefore knew his home was unoccupied. This was fault.
46. The Council did not complete Mr Y’s financial assessment until December 2021. The Council provided evidence that at this point it adjusted his account, which resulted in the following:
1. The Council decided Mr Y fell below the upper capital limit, as described at paragraph 17, in late April 2021. There was no evidence of fault in how the Council made this decision. The Council said Mr Y was liable for full care costs for the two months before he dropped below the limit but after his COVID-19 funding ended. Had the Council carried out its financial assessment sooner, I am satisfied Mr Y would still have been liable to pay full costs for these two months, as ultimately, he remained living in the care home permanently.
2. After Mr Y fell below the capital limit, until his tenancy ended, the Council took account of rent and bills Mr Y paid for his unoccupied home, in line with its policy described at paragraph 21. There was no fault in how the Council eventually adjusted Mr Y’s care charges for the period after he fell below the capital limit. I am satisfied the Council put Mr Y back in the financial position he would have been in, had it financially assessed him properly and in good time.
47. Ms X said she did not receive the Council’s December 2021 letter which explained the adjustments it had made to Mr Y’s account. There was no evidence the Council did not send the letter. I note Ms X said she did receive the next letter the Council sent her in February 2022. On the balance of probabilities, I consider it likely the Council did send the December letter, although I accept Ms X did not receive it.
48. As described at paragraph 19(h), as the Council failed to assess Mr Y’s long-term needs within six weeks of his hospital discharge, it should have arranged for his care home place to be funded until it had completed the relevant assessments. It did not do so, which was fault. However, I do not consider this fault had any impact on Mr Y, as ultimately, he decided to stay in the care home. Had the Council assessed Mr Y’s needs within six weeks it could have confirmed he was to stay in the home sooner, and so carried out its financial assessments sooner. However, I am satisfied it would have assessed his contribution to his care costs in the same way as it eventually did in its December 2021 retrospective assessment.
49. The Council’s delay in properly assessing Mr Y’s finances, and failure to provide clear information and updates about this, caused avoidable distress and confusion for both Mr Y and his family. They did not know what Mr Y’s living situation and associated costs would be in the long-term until February 2022. Mr Y’s family had to repeatedly chase the Council, and this caused them unnecessary stress. Ms X said Mr Y worried that he had not resolved what his care costs should be or paid his care home charges.

Complaint handling

50. Ms X said the Council took too long to respond to her complaint. The Council took five weeks to issue a formal response to the complaint. Although this is slightly longer than the Council says it will usually take to respond to a complaint, it did contact Ms X during that time. I do not consider the Council took an undue amount of time to respond to the complaint.
51. However, although the Council said in its October 2021 complaint response it would resolve the issues, it did not resolve Mr Y’s care charges until December 2021, when it received notice of the Ombudsman’s investigation. The Council then did not complete Mr Y’s needs assessment and confirm long-term funding for his care home placement until February 2022. The Council’s failure to act on its complaint outcome until it received notice from the Ombudsman, was fault. I consider Ms X had to spend unnecessary time and trouble pursuing the complaint with the Ombudsman for the issues to be resolved.

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Agreed action

52. Within one month of my final decision the Council will:
1. discuss and agree Mr Y’s latest needs assessment and support plan with Mr Y and any other person he wants involved;
2. apologise to Mr Y and his family for the faults identified, including an explanation of steps taken to improve its services and prevent this happening in future;
3. pay Mr Y £300, and his family £400, to recognise the avoidable distress and confusion caused by the Council’s failure to properly assess Mr Y’s finances in good time or provide clear information and updates about this; and
4. pay Ms X a further £150 to recognise the unnecessary time and trouble she spent pursuing the complaint with the Ombudsman, due to the Council’s failure to act on its complaint response.
53. Within three months of my final decision the Council will:
1. review its policies and procedures for Adult Social Care cases not allocated to a social worker to ensure it regularly checks progress and updates individuals and their representatives;
2. remind its Adult Social Care staff about:
1. an individual’s right to a representative or advocate during the care needs assessment process; and
2. the need for an individual or their representative/ advocate to see and agree to needs assessments and associated care and support plans.
3. remind its Adult Social Care finance and charging staff about checking correspondence is sent to the address where an individual is living, particularly where the Council has recently placed them in residential care; and
4. remind its staff who are responsible for complaints about ensuring actions arising from complaint outcomes are chased up with relevant teams and confirmed as complete in good time.

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Final decision

54. I have completed my investigation. There was fault by the Council which caused Mr Y and his family avoidable distress and confusion and caused Ms X unnecessary time and trouble. The Council agreed to our recommendations to remedy this injustice.

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Investigator's decision on behalf of the Ombudsman