Summary: There was fault in the Council’s communication with Mrs C on the care planning for her husband, Mr C. The Council also failed to properly respond to Mrs C’s complaints and there was a delay in obtaining a letter which was needed for Mrs C to access her husband’s assets. This caused distress to Mrs C and the Council has agreed to apologise, pay a symbolic financial remedy and implement a service improvement.

The complaint

1. Mrs C complains on behalf of her husband, Mr C, who has died. Mrs C says the Council failed to properly consider Mr C’s needs when planning his care package and failed to communicate with her about the care planning. She says the Council failed to respond to her complaint and ignored her solicitor’s letters.

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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. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

4. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
5. If you employ a professional person to help you make your complaint, such as a solicitor or surveyor, we will not normally ask the organisation to pay their fee. This is because people do not usually need professional help to put a complaint to us.
6. 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)

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What I have and have not investigated

7. Mrs C complained that care home managers visited and read his hospital medical notes. She said neither she nor Mr C had given their consent for this disclosure and this was in breach of data protection legislation. I have not investigated this complaint as the Information Commissioner’s Office is better placed to deal with this complaint.

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How I considered this complaint

8. I have discussed the complaint with Mrs C. I have considered the information that she and the Council have sent and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

Care Act 2014

9. The Care Act 2014, the Care and Support Statutory Guidance 2014 (CASS Guidance) and the Care and Support Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge. The Council also has its own policies.

Assessment, care plan and personal budget

10. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs and a personal budget which sets out the costs to meet the needs.
11. In determining how to meet needs, the local authority may take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties. This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population. The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met).
12. However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles. The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value.

Financial assessment

13. Councils must carry out a financial assessment if they decide to charge for the care and support. This will assess the person’s capital and income.
14. If a person needs residential care, the upper capital limit is currently set at £23,250 and the lower limit at £14,250. A person with assets above the upper capital limit will have to pay for their own care.

Choice of accommodation and top up fees

15. When a person has capital below £23,250 and it has been decided that their needs are best met in a care home, the council must ensure that at least one accommodation option is available within the person’s personal budget and it should ensure that there is more than one of those options.
16. However, a person can choose a more expensive care home if a third party or in certain circumstances the resident is willing and able to pay the additional cost. This is known as the top-up fee.
17. The Guidance says that, if a person chooses a care home that is more expensive than the amount identified in the personal budget and a top-up fee has to be paid, the council has to:
• Ensure the person paying the top-up understands the full implications of this choice, remembering that this is often at a point of crisis.
• Provide the person with sufficient information and advice so they understand the terms and conditions, including actively considering the provision of independent financial information and advice.
• Ensure the person is willing and able to meet the top-up, recognising that this may be for some time in the future.
• Ensure the person enters a written agreement with the council, agreeing to meet the cost.

Self-funders who want the Council to help them

18. The Care Act 2014 enables a person who can afford to pay for their own care and support in full to ask the local authority to arrange their care on their behalf. Where the person requires care in a care home to meet their needs, the local authority may choose to respond to the person’s request by meeting their needs. Where the person requires some other type of care, including other types of accommodation to which the right to a choice applies, the local authority must meet those needs.
19. In such circumstances, whether because the authority chooses to meet needs in a care home, or is required to meet needs in some other type of accommodation, the same rules on choice must apply.
20. In supporting self-funders to arrange care, the local authority may choose to enter into a contract with the preferred provider, or may broker the contract on behalf of the person. Where the local authority is arranging and managing the contract with the provider, it should ensure that there are clear arrangements in place as to how the costs will be met, including any ‘top-up’ element.

Mental Capacity Act 2005

21. The Mental Capacity Act 2005 and the Code of Practice 2007 are the framework for acting and deciding for people who lack the mental capacity to make decisions for themselves.
22. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
23. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
24. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

Lasting Power of Attorney

25. A Lasting Power of Attorney (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. There are two types of LPA: Property and Finance LPA and Health and Welfare LPA.
26. If there is a need for continuing decision-making powers and there is no relevant LPA, the Court of Protection may appoint a deputy to make decisions for a person.

Third party mandate

27. The Office of the Public Guardian’s website has the following information about managing bank accounts.
28. A bank account holder who has mental capacity can authorise someone else to have access to their account. This may be for convenience or because of the account holder’s long periods of travel or physical disabilities. If you have the right to handle the account of someone who has mental capacity, you have a ‘third-party mandate’. A third-party mandate is not appropriate if the account holder is losing the ability to make relevant decisions themselves.

What happened

29. Mr C was an older man who had dementia. Mr C was admitted to hospital in July 2023.
30. The Council’s social worker assessed Mr C’s needs for care and support and carried out a mental capacity assessment (MCA) on 20 July 2023. She provided a care plan on 2 August 2023.
31. The documents noted the following:
• Mr C had Lewy Body dementia and this resulted in hallucinations and paranoia. He had started to forget who Mrs C was and sometimes did not recognise her. He was often wandering the streets. He had several falls at home which had led to hospital admissions.
• Mr C required assistance in all aspects of his life and his needs would be best met in a care home which specialised in dementia.
• Mrs C said Mr C should remain in town D which was in Dorset, not Somerset, as he was familiar with this town and his medical and mental health support was based there. Mrs C had found a care home (care home 1) in town D which she said was ideal for Mr C and which cost £1,750 per week.
• Mr C lacked the mental capacity to make decisions about his finances.
• Mr C had capital assets above the threshold to be eligible for Council funding so he was a self-funder. However, Mrs C did not have access to Mr C’s finances and was applying to be Mr C’s deputy for finances, with the assistance of a solicitor. The Council would therefore fund the placement until Mrs C was able to access the finances.
• Mr C’s personal budget was £750 per week and Mr C would contribute £172.80 from his income towards his care. Mrs C was going to pay a top-up fee of £1,000 per week. Mrs C was appointee for Mr C‘s attendance allowance and state pension.
• Mrs C would repay the funds paid by the Council once she became Mr C’s property and financial affairs deputy.
32. The social worker asked for approval of the plan to the manager on 3 August 2023. The manager questioned whether Mrs C could continue to pay a weekly top-up fee of £1,000 and reminded the social worker of the Council’s duty to offer Mr C a care home within his personal budget of £750 so that he had a real choice. She was concerned that, if the Council did not offer this, it would be open to a legal challenge. The social worker said this had been offered to Mrs C but she insisted on care home 1.
33. The social worker met Mrs C on 7 August 2023. Mrs C said she was not able to pay the £1,000 weekly top-up fee but her solicitor had advised her that the Council should pay the entire £1,750. The social worker said there were 5 homes available at the Council’s rates in the Council’s area but Mrs C said these were too far away as she did not drive and had to use public transport.
34. Mrs C signed a letter from the Council which said:
• Mrs C was applying to the CoP to become Mr C’s deputy for finances.
• While this application was being progressed, the Council agreed to pay £750 a week towards Mr C’s residential placement.
• The application for deputyship usually took around 4 to 6 months. Once deputyship was granted, Mrs C agreed to inform the Council so that the Council could assess what Mr C should pay towards his care.
35. On 8 August 2023 the Council found care home 2 in town D for Mr C to move to. The social worker sent a referral to care home 2 so the care home could visit Mr C to assess him.
36. The social worker met with Mrs C (the note was dated 9 August 2023 at 9:34 am, and I think therefore that the meeting took place on 8 August). The social worker said he would try to find a care home near town D within Mr C’s personal budget of £750. He said the Council may increase the personal budget to £818 if Mr C moved to Dorset as Dorset’s rates were higher.
37. On 9 August 2023 Mrs sent an email to the Council and said the CQC had rated care home 2 as requiring improvement in ‘safety and effectiveness’ so she would not agree to a move to care home 2. The social worker spoke to Mrs C and told her that the manager of the Council’s Sourcing team had visited the Home following the recent CQC inspection and confirmed that the Home had made significant changes to the structure and in the delivery of the care.
38. On the same day, care home 2’s manager visited Mr C to assess him, but then reported back that Mrs C was at the hospital and objected to the assessment and the assessment could not be carried out.
39. In the evening of 9 August 2023, Mrs C emailed the Council and said she wanted the Council to write a letter, without prejudice, to explain why it had refused to fund care home 1. She said Mr C could only live in a care home in town D as his GP and other medical provision were there and it was easier for her to visit him as she did not drive.
40. The Council replied to Mrs C’s email on 16 August 2023 and said it would always try to agree a care home which the person and their family wanted but it could also take resources into account in its choice of care home.
41. The social worker rang Mrs C on 17 August 2023 as he wanted to organise a best interest decision meeting for Mr C.
42. The Council held a best interest meeting with Mrs C on 21 August 2023 which medical professionals also attended. The social worker gave a list of care homes which were available but Mrs C rejected these as they were not in town D. Mrs C wanted to know why the Council could not temporarily fund the placement if she agreed to repay the money. She said she could not agree to any decision at the meeting and would take the information back to her solicitor.
43. Mrs C’s solicitor made a formal complaint to the Council on the same day and said:
• The Council had not explained how the Panel reached its decision that Mr personal budget was £750, it had not provided Mr C with an alternative care setting, nor had it explained how Mrs C could appeal the decision.
• The Council had set an arbitrary limit on the cost it was willing to pay for Mr C’s care home and that was not in line with the Care Act and the CASS Guidance. It had not considered Mrs C’s case on an individual basis.
44. On 24 August 2023 Mrs C said she would not agree to any care homes in Somerset and the matter was with her solicitor.
45. The social worker and the hospital discharge lead met with Mrs C on 25 August 2023. The social worker said the Council had a duty to offer Mr C a care home within his personal budget. Mrs C said she would not allow Mr C to move to any care home except for care home 1 and she would ask her solicitor to obtain an injunction to stop the Council from moving Mr C, if necessary.
46. The social worker said it was not in Mr C’s best interests to remain in hospital until Mrs C had obtained deputyship for Mr C’s finances. Mrs C said it should not take too long to obtain deputyship and they might have enough money to pay Mr C’s fees at care home 1 for at least 7 months. The social worker suggested that Mrs C ask care home 1 whether they would agree to accept Mr C and sign a contract that the fees are paid once deputyship is granted.
47. The social worker had a meeting with Mrs C on 29 August 2023 and explained that the Council was still pursuing the possibility of other care homes as it had a duty to do so.
48. On 7 September 2023 Mrs C emailed the Council and said:
• Her solicitor had advised her to contact the building society where Mr C had an account to find out if they could assist in allowing access to the funding until deputyship was granted.
• The building society had said it needed a letter from Mr C’s social worker, nurse or doctor to explain why Mr C could not manage his finances anymore. This should be on letterheaded paper and signed.
• She suggested that the writer could use Mr C’s mental capacity assessment as this should contain the information that the building society needed.
• She was not asking for the mental capacity assessment to be sent to her but merely suggested it may be an efficient way to confirm capacity.
49. On 14 September 2023 Mrs C emailed the Council as she had still not received the letter. She said:
• This letter could allow her to start paying the fees before the urgent application for deputyship was decided.
• The building society had told her that the hospital social worker could fill in this letter as the social worker had access to the medical records so could confirm Mr C’s diagnosis and the fact that he was in hospital and the social worker had access to his mental capacity assessment which said Mr C lacked capacity to manage his finances.
50. On 15 September 2023 the social worker asked the hospital staff to write the letter as he felt the letter should be written by a clinician. The social worker also sent the hospital’s discharge summary to Mrs C.
51. Mrs C replied on the same day and said the discharge summary was not sufficient. She explained again that a letter should be written on letterheaded paper and what the letter should address. The social worker emailed the hospital staff and chased them to write the letter urgently.
52. On 19 September 2023 the social worker spoke to Mrs C and Mrs C said that, if she received the letter she had asked for from the social worker, she should be able to access Mr C’s funds and pay the care home fees. Mrs C said that the building society also wanted to see a copy of the mental capacity assessment.
53. The social worker sent the letter and the MCA to Mrs C on 25 September 2025. On 2 October 2023 Mrs C’s solicitor wrote to the Council as she had still not received a response to her letter dated 29 August. The third-party mandate was granted on 5 October 2023 and Mr C was discharged from hospital on 16 October 2023.

Mrs C’s complaint – November 2023

54. On 3 November 2023 Mrs C complained to the Ombudsman about the Council’s actions and said:
• The Council’s assessment of Mr C’s needs and his care plan did not properly consider Mr C’s needs, nor the fact that he could choose a care home that cost more than his personal budget. Mr C could only live in town D as he was familiar with this town, his physical and mental health care support was there and it was easier for Mrs C to travel to. The Council did not consider this properly.
• The Council never properly explained how it considered Mrs C’s request to lend her the money to fund care home 1 temporarily or why the request was rejected. She felt the Council’s entire attitude was dogmatic and forceful without properly considering Mr C’s unique position.
• There was poor communication from the Council throughout the process.
• The Council failed to properly respond to her complaints or to her solicitor’s letters.
• The manager of care home 2 visited Mr C to assess him without informing Mrs C of their visit. She had not had a chance to visit the home yet and was ‘sneered and sniggered at’ by the manager.
• The Council should have informed her of the option of a third-party mandate early in the process.
• After Mrs C explained to the social worker that the bank needed a simple letter from the social worker to approve the third-party mandate, the matter was delayed by a further month before the letter was provided.

Council’s response to the complaint – December 2023

55. The Ombudsman asked the Council whether the complaint had gone through the Council’s complaints process. The Council said:
• It had received Mrs C’s complaint dated 3 November 2023 but the complaint did not meet the criteria to be handled via the complaints process. Mrs C’s complaint was that she did not accept the reason provided by the Council why it would not fund care home 1 and this could not be resolved by the complaints process.
• The Council had been in regular contact with Mrs C throughout. It had agreed to temporarily fund a residential placement for Mr C. It had offered Mr C a care home in his preferred area which could possibly meet his needs but this offer had been rejected by Mrs C. Mrs C said she would not allow other care homes to assess Mr C. The Council held a best interest meeting which Mrs C and her solicitor attended and the Council appointed an independent mental capacity advocate for Mr C.
• Mrs C had then been able to access Mr C’s capital via a third-party mandate and the matter had been closed.
56. The Ombudsman told the Council that this response did not address all of Mrs C’s complaints and the Council then agreed to provide a stage 2 response to the complaint.

Council’s stage 2 response to the complaint – April 2024

57. The Council provided a stage 2 response to the complaint and said:
• The rate at Mrs C’s preferred care home 1 (£1750) was considerably higher than the £750 the Council was willing to pay so the Council refused to pay £1750.
• Mrs C’s solicitors were involved in the discussions and attended meetings. However, on reflection it admitted that it should have responded to the solicitor’s letter of October 2023 and this had been shared as a point of learning with the service.
• The Council upheld the complaint that it failed to acknowledge the complaints letter from Mrs C’s solicitors dated 21 August 2023 and respond to the letter and that this was not in line with its complaints process.
• It upheld the complaint about the lack of communication between the Council and Mrs C and her solicitor and apologised for this.

Further information

58. Mr C died in October 2024. He continued his stay in care home 1 until his death.
59. I asked the Council whether the Council treated Mr C as a self-funder or not when it made the decision to refuse to temporarily lend him the funding for the fees and the Council said: ‘The Council were informed [Mr C] would likely be a self-funder however no evidence was provided to corroborate this or the amount of finance [Mrs C] would ultimately have access to once she was granted deputyship.’
60. I asked the Council to send me the minutes of the Panel meeting where it was decided that the Council would only agree to pay the personal budget rate but the Council said it did not keep minutes.
61. However the Council explained why it decided not to temporarily lend Mrs C the funding for care home 1’s fees. The Council said:
• ‘The Council do not have to agree to offer such an arrangement.’
• ‘The decision to decline this loan was taken because the Council was able to source a care home that could meet [Mr C’s] assessed care needs at the Council’s rate for residential care which was significantly cheaper than the home [Mrs C] had found.’ 
• As the Council had no knowledge of how much finance would be available to Mrs C and for how long Mr C would require the care, the decision was taken that it would put the Council at financial risk to approve an unsecured, open ended loan for such a large weekly care fee.  In cases such as this the Council have to consider its budget as a whole and how best to meet the needs of the many people to which we have a statutory responsibility.
• ‘The Council also had to protect itself against occasions where the capital of people in high-cost placement falls below threshold, they are then eligible for social care funding but they and their family are understandably unwilling to leave the placement that they consider their home to move to an alternative that did accept local authority rates.  This can be a very distressing time for all and one that we would rather avoid.  It is therefore preferable generally for people to move to a home that accepts local authority rates in the first place to avoid such distress and inconvenience.’

Analysis

62. It is not the role of the Ombudsman to assess Mr C’s needs or to say what his care plan should be or where he should live. I have only considered whether there is any fault in the actions of the Council and have done so with reference to the Council’s duties and its powers.
63. The Council’s duties in paying for residential accommodation are very different depending on what capital a person owns. If a person has assets below the threshold of £23,250, the Council has a duty to pay the residential accommodation fees. If the person has assets above £23,250, the Council does not have a duty to pay and is actually precluded from paying.
64. However, neither the legislation, nor the regulations address the unusual situation which Mr C and Mrs C were in which was that Mr C had assets over £23,250 and was therefore a self-funder who could choose where he wanted to live but he and Mrs C were unable to access the assets temporarily so they were unable to pay the fees.
65. I would have expected the Council to take Mr C’s unique position into consideration in its decision making and then to explain how it had done so clearly to Mrs C. I have focussed my investigation on these aspects.
66. I will first consider whether the Council was fulfilling its duty towards Mr C if Mr C was treated as if he had no capital over the threshold. Mrs C said that the Council failed to find Mr C a care home that would meet his needs.
67. The Council carried out a full Care Act assessment of Mr C’s needs and considered his needs and the outcomes in line with the Care Act 2014. The assessment was detailed and identified the underlying conditions which meant Mr C could not meet his needs independently.
68. The assessment concluded that Mr C needed a care home which was registered to take residents with a diagnosis of dementia. The social worker also noted that Mrs C said that Mr C should move as close as possible to town D, as he was familiar with this town, it would ensure continuity of physical and mental health provision and it was easier for her to travel to. I note that the Council agreed an increase in its personal budget to £818 for a move to town D as town D’s rates for care homes were higher. I find no fault in this respect.
69. I also note that the Council identified care home 2 which it said could meet Mr C’s needs. The Home was registered as a nursing home which admitted residents with dementia and it was located in town D. I accept that the Home was rated as ‘requires improvement’ in one area at the time, but I note that the Council’s Commissioning Team had inspected the Home and was satisfied that the necessary improvements had been made.
70. Therefore, I cannot find fault in the Council’s decision making that it had found a care home that could meet Mr C’s needs. I accept that Mrs C disagrees with this but the Ombudsman cannot question the merit of a decision if there was no fault in the way the decision was made.
71. The Council has also explained how it considered Mr C’s unique position. The Council had discretion to provide funding but, as this was a discretionary power, the Ombudsman cannot say the Council had a duty to take a particular action. What I can say is that the Council had a duty to properly consider using its discretion.
72. The Council has explained how it made its decision to the Ombudsman (see paragraph 61) and I accept its reasons. The Council took into consideration the following factors:
• The matter was discretionary.
• An alternative care home within the personal budget had been identified that could meet Mr C’s needs.
• Care home 1’s fees were £1,000 a week more than the ‘significantly cheaper’ care home 2 which was within Mr C’s personal budget.
• It would not agree an open-ended unsecured loan.
• The Council did not know how long Mr C would be able to self fund care home 1.
• Once Mr C ran out of money, he may need to move to a different care home which would be distressing and the Council wanted to avoid this situation. Therefore, it was better that people moved into a care home which could be funded indefinitely so they did not have to move.
73. However, I uphold Mrs C’s complaint that the Council’s communication in this respect was very poor. I do not understand why the Council did not explain the reasons for its decision properly to Mrs C. From the documents I have seen the Council ignored the fact that Mr C was a self-funder and treated him as if he were simply a person eligible for funding and I can see why this came across as ‘dogmatic’. There was no evidence, from any of the documents I have seen, that the Council ever discussed with Mrs C why it would not lend her the money temporarily. This failure to properly explain its reasons for the decision was fault.
74. Mrs C has suffered an injustice in this respect. This would have already been a highly stressful situation for Mrs C as she had to make life-changing decisions for Mr C quickly, under pressure. The Council’s failure to properly communicate with her would have added to her distress.

Complaint response

75. There was also fault in the Council’s failure to respond to Mrs C’s solicitor’s complaint. It may well be true that the solicitor was included in some of the communications but that did not mean that the Council have a duty to respond to a formal complaint.
76. I also do not understand why the Council refused to respond to Mrs C’s complaint initially. It was true that Mrs C disagreed with the Council’s decision and care plan for Mr C, but that was therefore a good reason to respond to the complaint. Also, when the Council eventually sent a stage 2 response, at the request of Ombudsman, it still did not address most of Mrs C’s complaint, for example the complaints about the advice and the letter regarding the third-party mandate or the full explanation of its reasons why it refused to temporarily fund care home 1. This was further fault.
77. This failure to properly communicate and respond to the complaint added again to Mrs C’s distress.

Third party mandate

78. Mrs C said the social worker should have advised her to apply for a third-party mandate to the Building Society. She said that the social worker later told her he had encountered a third-party mandate before because of a previous client and said he did not know why he did not think of it. I agree it would have been helpful and good practice if he had remembered this, but I cannot say there was fault.
79. A third-party mandate is normally granted when a person has the mental capacity to make financial decisions and its discretionary use by a building society where the person lacks mental capacity is the exception. Overall, social workers are not financial advisers nor lawyers and I would not say there was fault in the fact that the social worker did not advise Mrs C in this matter.
80. There was however some fault in the delay in providing the letter that Mrs C had asked for. Mrs C asked the social worker to write a letter for the building society which set out Mr C’s diagnosis and the reason why he could not manage his finances. Mrs C said in her email dated 8 September 2023 that the building society had told her that this letter could be written by a social worker. She repeated this again in her emails dated 14 and 15 September 2023. She stressed the importance of the letter and the fact that this would mean that she would be able to access Mr C’s funding and this would be a solution to the problem.
81. Therefore, I do not understand why the social worker did not write the letter and instead insisted that a medical professional should write the letter which contributed to the delay. So some of that delay was unnecessary and therefore fault. It meant that Mr C was longer in hospital than he needed to be which would have been distressing for him and Mrs C.

Notice re visit

82. Generally speaking, social workers will find care homes on the basis of their assessment of a person’s needs, but a representative from the care home will then visit the person and carry out their own assessment to decide whether the care home can meet a person’s needs. That is good practice.
83. However, I agree it would have been good practice for the Council to inform Mrs C of the visit so that she did not have to find her husband being assessed by a strangers without her knowledge. I understand why this would have been distressing to Mrs C, particularly as she was strongly of the view that Mr C should not move to any care home apart from care home 1.

Remedy

84. The main faults I have found related to the Council’s poor communication both in terms of the process and the failure to respond and address the complaint and then the delay in providing the letter Mrs C had asked for.
85. Mrs C has told the Ombudsman she is seeking compensation as she says the Council’s actions have affected Mr C’s health outcome and this has led to higher care and legal bills. Unfortunately, the Ombudsman is not a court and we do not provide compensation.
86. The aim of the Ombudsman’s remedy is to put the person in the position they would have been if the fault had not happened. Sadly, as the person who has suffered the main injustice, Mr C, has died, I cannot remedy any injustice that he has suffered. I have also explained to Mrs C that the Ombudsman does not normally pay a solicitor’s fees. Mrs C did not have to instruct a solicitor to assist her in her negotiations with the Council about the care planning for Mr C or in her complaints to the Council.
87. However, I do not underestimate the distress this whole situation has caused Mrs C. In complaints such as this one, where the main injustice is distress, the Ombudsman can recommend a small symbolic financial remedy for distress and I recommend the Council pays Mrs C £200.
88. In terms of service improvements, Mrs C said she wanted the Council to set up a fund at a low interest rate to fund the care fees of people who are in a similar situation than Mr C. Unfortunately, that is not a remedy the Ombudsman can recommend. In situation such as Mr C’s, the Council’s duty is to properly consider its decision on an individual basis, using its discretionary powers, and then explain its reasons. The Ombudsman cannot say it is the Council’s duty to fund all people in Mr C’s position.
89. I note the Council has already said it has shared learning points regarding communication because of Mrs C’s complaint. I recommend the Council shares the decision statement with the relevant people within the service.

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Agreed action

90. The Council has agreed to take the following actions within one month of the final decision. The Council will
• Apologise to Mrs C in writing.
• Pay Mrs C £200.
• Share this decision statement with the relevant people within the service.

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Final decision

91. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman