Summary: We upheld Ms X’s complaint. There was delay by the Council in completing social care assessments, drawing up care and support plans and commissioning a care package to enable Ms Y to return to her flat rather than remain in a care home for almost two years. There was also a failure to participate in best interests decisions around her care and support and housing. This caused avoidable distress and meant Ms Y was unable to see her partner. Ms Y/her family also incurred an avoidable financial loss because she/they paid for care privately. The Council has already taken appropriate action by apologising, reviewing financial assessments resulting in no care charges, making symbolic payment to reflect distress and refunding private care fees.

The complaint

1. Ms X complained for her mother Ms Y. She said the Council placed Ms Y in a care home for almost two years when she could have remained living in her own flat. There were delays carrying out social care and financial assessments and arranging a care package after Ms X decided to move Ms Y back to her flat.
2. Ms X said she and Ms Y were both caused:
• a financial loss due to paying care fees which the Council should have paid; and
• avoidable distress caused by a lack of contact and avoidable inconvenience because the care home was far away.

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The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
4. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (Local Government Act 1974, sections 26A or 34C.) Ms X is a suitable representative because her sisters, who have legal power to make decisions about Ms X’s health and welfare, have given written consent for her to complain to us.
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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’. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. 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)
8. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, sections 24A(1)(A) and 25(7), as amended).
9. The Council commissioned Ms Y’s care at Scheme A. We can investigate the actions of the in-house care provider (the Care Provider). I have not identified Scheme A or the Care Provider because there is a risk of identifying those involved in the complaint.

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What I have and have not investigated

10. I investigated from December 2021 to April 2024.
11. The time bar described in paragraph five does not apply to complaints made on behalf of adults who lack mental capacity to complain, such as Ms Y.

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How I considered this complaint

12. I considered the complaint to us, the Council’s complaint responses and documents in this statement. I discussed the complaint with Ms X.
13. Ms X, the Council and the Care Provider had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

14. A council must carry out an assessment for any adult ‘with an appearance of need for care and support’. (Care Act 2014, section 9) I call this a social care assessment (or just an assessment).
15. An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs. Councils should give the person an indicative timescale and keep them updated. (Care and Support Statutory Guidance 2014, paragraph 6.24)
16. A council has a duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
17. A council has power to meet urgent needs. (Care Act 2014, section 19)
18. If a council decides a person is eligible for care, applying national criteria, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether and to what extent the needs meet the eligibility criteria and specifies the needs the council is going to meet and how this will be done. The council should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
19. There is no defined timescale for completion of the care and support planning process. The plan should be completed in a timely fashion and it should not unduly delay needs being met. (Care and Support Statutory Guidance paragraph 10.84)
20. Public authorities and others who make decisions for people who lack mental capacity, must:
• Make a decision in the person’s best interests.
• Consider whether the purpose or outcome can be achieved in a way that is less restrictive. (Mental Capacity Act 2005, section 1)
21. When dealing with adults who lack capacity to make decisions about their care, councils should consult and take into account the views of: people the person has named to consult, carers their attorney or deputy. Generally, councils consult about care and support plans by holding a best interests meeting involving relevant people.
22. The Human Rights Act 1998 brought into English law the rights set out in the European Convention on Human Rights. Article 8 says everyone has the right to respect for private and family life. The Human Rights Act requires bodies carrying out public functions (including councils) to respect and protect individuals’ rights.
23. Our remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But we can decide whether or not an organisation has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint. Councils will often be able to show they have complied with the Human Rights Act if they can:
• show they have considered the impact their decisions will have on the individuals affected; and
• there is a process for decisions to be challenged by a review or appeal.
24. Housing with Care (HWC) allows older adults to live in a rented home with on-site care and support. In Norfolk, the schemes are for adults who need at least four hours a week of care. There are also Housing with Extra Care (HWEC) schemes, or units, where adults receive more hours of care within the same type of housing.
25. Since this complaint, the Council has amended its application process for HWC and HWEC. The procedure now says where a person is absent from a scheme for nine months or longer, finance and commissioning staff will inform management so that the case can be allocated for a review or reassessment. The finance team will also send the person a letter explaining some benefits to support with housing costs will stop after an absence of more than 12 months.
26. Councils charge adults for care and support services they arrange. The charging rules for residential care are in the Care and Support (Charging and Assessment of Resources) Regulations 2014. When a council arranges a care home placement, it must follow the regulations when undertaking a financial assessment (FA) to decide how much a person must pay towards the cost of their residential care. Most types of income can be taken into account when calculating a person’s care contribution (charge).
27. When carrying out an FA, a council must disregard as income, any housing-related costs which a temporary resident is liable to meet in respect of their main home. Housing-related costs are mortgage payments, rent, council tax and service charges (apart from charges which are ineligible under the rules for housing benefit.) (Charging and Assessment of Resources) Regulations 2014, Regulation 2.)

What happened

Background

28. Ms Y has dementia. The complaint is about the Council’s actions or failures to act after Ms Y was ready to be discharged from hospital at the end of 2021.
29. Ms X’s sisters are Ms Y’s attorneys for health and welfare. This means they have the legal right to make decisions about Ms Y’s health and welfare in her best interests.
30. The Council commissioned a placement for Ms Y in a Housing with Care (HWC) scheme for older people (Scheme A). Ms Y has an assured (permanent) tenancy in Scheme A. The landlord is a housing association; care is provided by an in-house care provider (the Care Provider). Ms Y’s rent is covered by housing benefit which is administered by the local housing authority (a different council). Ms Y’s tenancy can only be ended by the housing association giving correct notice and getting a court order. The records indicate the housing association did not start legal proceedings to evict Ms Y. This means her flat was available for her to occupy and the landlord and Care Provider could not have stopped Mr Y from returning.

2021

31. Ms Y went into hospital at the end of 2021. The Care Provider at Scheme A told the Council Ms Y could not return there as her care needs were too high and they could not keep her safe. From hospital, Ms Y went to stay with one of her daughters temporarily. Ms Y could not continue to stay with her daughter until matters were resolved. The daughter contacted the Council’s adult social care team for assistance and a placement.

2022

32. The Council arranged for Ms Y to go into a care home temporarily in January while it liaised with the managers at Scheme A. Ms Y was assessed several times to lack mental capacity to make decisions about her care and accommodation. There is no written record of any best interests’ decisions involving the attorneys and council officers.
33. In March, the Council began a social care assessment. She was still in short-term residential care in the care home. The assessment noted Ms Y had less frequent contact with her daughters or her partner because the care home was far away from them. The assessment was not fully completed in March. There are notes added to it in April, May, June and July. A new social worker took over Ms Y’s case in July. The outcome of the assessment was Ms Y was eligible for care and support. There is no care and support plan.
34. The Council’s adult social care and finance records include notes and emails of regular contacts from Ms X and her siblings throughout 2022. They were unhappy with Ms Y remaining in the care home as they considered it restricted her independence, freedom and her ability to have contact with her partner who lived at Scheme A. Her daughters noted Ms Y was still liable for rent and service charges at Scheme A despite not living there. The Care Provider’s managers of Scheme A continued to tell council officers Ms Y’s needs were too high for them to meet.

2023

35. In March, the Council carried out a further social care assessment. This was prompted by Ms Y’s family asking if they could take Ms Y back to Scheme A. Ms X told me Ms Y was unhappy in the care home and was often asking why she needed to live there. The social care assessment noted Ms Y’s relatives and partner lived a long way away from her and she had no regular visits. And staff at the care home had removed Ms Y’s mobile phone from her (because she was calling emergency services frequently). The social worker noted they had spoken to Scheme A’s managers about Ms Y returning to her flat for a trial period. But the Care Provider at Scheme A said it would not provide Ms Y’s care because she was too high risk.
36. The social worker and their manager liaised with the managers of Scheme A. Ms Y remained in the care home. The Care Provider said they could not meet her needs even if she moved into Scheme A’s HWEC unit and suggested Ms Y needed 24-hour care.
37. In May, Ms X complained to the Council about the matters she raised in her complaint to us.
38. Social workers carried out several mental capacity assessments. The outcome on each occasion was Ms Y lacked mental capacity to make decisions about her care and support. There is no record of any best interests’ decisions about where Ms Y should live and receive care.
39. In July, the Council did a care and support plan for Ms Y. This summarised her care and support needs and how to meet them. It said Ms Y’s needs were being met at the care home.
40. In September, a different HWEC scheme assessed Ms Y. It declined to offer her a place saying her needs were too high.
41. In September, Ms Y’s family moved her back to Scheme A. The records indicate they did this without telling the Council or Scheme A. The Council funded a week of one-to-one care as a trial. The Care Provider at Scheme A refused to provide Ms Y’s care due to its view that the risks around her accessing the community independently and managing her medication were too high, and its internal emails between staff and council officers indicate the Care Provider regarded Ms Y’s placement as ‘let without care’. (meaning the landlord was providing the flat, but the Care Provider was not providing any care). Emails from Ms Y’s family, indicate they arranged for Ms Y to receive two half hourly care calls a day. Ms Y also went to day centres and had informal support from her partner and from her daughters who visited regularly.
42. The Council carried out a third social care assessment in September/October in response to Ms Y returning to Scheme A. The assessment included the family’s views on Ms Y’s care: they wanted her to stay in Scheme A. The social worker’s view at that time was Ms Y needed to be in HWEC and she needed a facility with more security due to poor road safety. The assessment noted Scheme A’s HWEC unit would not accept Ms Y. The next steps for the social worker were recorded as “implement a long-term care plan HWEC.”
43. A team manager from the Council also did a social care assessment at the end of November. Her view was Ms Y did not need HWEC as she was active, could attend to most of her care needs and had expressed the view that she liked living in Scheme A. The team manager noted she did not agree with Scheme A about the level of concern about Ms Y’s road safety awareness. The manager concluded risks around medication were managed by medicine being kept in a locked box and Ms Y was not going out as much recently. The manager said Ms Y’s presenting needs could be managed by the Care Provider at Scheme A. The manager noted in an email to Ms X after the assessment, that the family had hired a private care provider for two half hourly calls a day (which cost £18 for each 30 minute call). Ms X had told the manager the family had taken out a loan to pay for this and said she wanted the Council to re-start Ms Y’s care package.
44. The Council did a care and support plan in October which set out Ms Y’s eligible needs and outcomes. The plan set out the cost of services at the care home.
45. The Council’s first response to the complaint in October said:
• The care home was a short-term placement after Ms Y’s hospital discharge.
• There was a delay completing the social care assessment to establish long- term arrangements for her care and support were, for which the Council apologised.
• There was delay in agreeing a care and support plan due to the family’s disagreement with the Council’s view that Ms Y’s needs were best met in a care home.
• As Ms Y had now returned to Scheme A, the Council would carry out a further social care assessment.
• It would respond to the complaint about the financial assessment (FA) shortly because the FA was being reviewed.
46. Ms X was unhappy with the Council’s response and escalated her complaint. Meantime, the Council reviewed Ms Y’s financial assessment. The Council’s stage two response at the end of November said:
• The original FA for the care home did not take into account rent and service charges for Scheme A which Ms Y still had to pay even though she was not living there. As these outgoings were not included, she was wrongly assessed as being liable to pay charges for her care in the care home. The Council was sorry for this error.
• The revised FA had a nil contribution for care home charges from 17 October 2022 when Ms Y’s housing benefit was suspended. The FA included the service charge for Scheme A as an additional expense as well as the rent.
• Ms Y still owed some rent for Scheme A and also some service charges; £2328 in total between 17 October 2022 and 29 August 2023.
• The Council could not reduce Ms Y’s care charge to below zero. So instead, it offered £2328 as a remedy to recognise its failure to complete or delay in completing a social care assessment.
• The Council would make an additional payment of £500 each for Ms X and Ms Y
• The social care assessment was started in March 2022 and not finished till July. The next social care assessment began in March 2023.
47. At the end of November, the team manager emailed Ms X following a meeting with her. The team manager said Ms X has asked for the Care Provider at Scheme A to start providing Ms Y’s care. The Care Provider continued to refuse. Meantime, Ms Y had two periods in hospital and the Council commissioned the care provider the family had been using to provide Ms Y’s care package.
48. Ms X was unhappy with Council’s second complaint response and asked the Council to look at the issues she had raised again. The Council’s third complaint response said:
• It would make a payment of £2328 calculated following a revised FA
• Ms Y’s housing benefit was suspended on 17 October 2022. This had been included in the FA as an expense
• The Council had cancelled all Ms Y’s care charges (total £4412) back to 17 October 2022 and topped this up to include £2328 to cover the additional housing costs at Scheme A
• Ms Y had not been paying her (ineligible) charges at Scheme A
• Some payments had been made towards her charges over the last year, but they only covered previous debt on the account for respite care from January 2022
• The Council had disregarded her income to cover the rental arrears and overpaid housing benefit, however this income was not used to pay the rent/service charge at Scheme A.
• It had applied a credit of £4412 to Ms Y’s care account. There was a debt of £3883, so the account would now be in credit and a refund of £528 had been processed and would be in Ms Y’s bank account shortly.
• The Council was assessing Ms Y’s needs currently
• The social worker would follow up the issue of Scheme A’s care provider not providing care.
49. The Council also offered Ms X a payment of £500 to reflect her avoidable time and trouble complaining and Ms Y a payment of £750 for distress caused by the delays it had identified.
50. The Council confirmed it had made the payments in paragraph 48 and 49 and applied the refund.
51. The Council carried out financial assessments for Ms Y and reviewed them as part of its complaint response (see paragraph 46). Ms Y’s weekly care contribution was:
• March 2022 (from April 2022): £97
• May 2022 (from January 2022): £94
• October 2023 (from 17 October 2022): nil charge
• October 2023 (from 16 October 2023); nil charge (because Ms Y’s family arranged her care privately)

2024

52. The Council began commissioning Ms Y’s care package in March. Ms X made a second complaint to the Council about the family paying for private care for Ms Y from September 2023 due to the Council not arranging a care package for Ms X. She asked the Council to refund the family’s fees. The Council upheld the complaint and gave a refund of fees between 10 October 2023 and 17 March 2024 net of Ms Y’s weekly care contribution of £114 (and not including a two week period when Ms Y was in hospital). The Council made a payment of £2720 in fees and £250 to reflect Ms X’s avoidable time and trouble complaining and its delay in responding to the second complaint.

Was there fault?

53. There was fault by the Council because:
1. Ms Y’s placement in the care home was supposed to be a short-term arrangement to meet her eligible care needs in the period after hospital discharge while the dispute with Scheme A about risk and need was resolved. The placement lasted almost two years and was therefore not short-term. There was a failure to complete a timely social care assessment. The assessment started in March 2022 was not finalized until July 2022. This was six months after Ms Y was placed in the care home. It was not within a reasonable timeframe or in line with paragraph 6.24 of Care and Support Statutory Guidance.
2. The Council did not complete a care and support plan for Ms Y following the assessments of July 2022 or March 2023. This was not in line with Section 24 of the Care Act 2014 or paragraph 10.84 of Care and Support Statutory Guidance which say care and support plans should be completed in a timely manner.
3. Ms X was assessed to lack mental capacity around her care needs. There were no best interests’ decisions taken by the attorneys and council officers. This was not in line with Section 1 of the Mental Capacity Act 2005.
4. There is no record of any consideration by the Council of Ms Y’s Article 8 rights to respect for family and private life in any of the social care assessments. The evidence indicates she could not see her partner who could not travel to the care home because it was too far away.
5. Ms Y returned to her flat in October 2023. The social care assessment completed by a council manager in November said her needs could be met in HWC. Yet the Care Provider (commissioned by the Council) refused to provide the care package. The Council has a duty to meet Ms Y’s eligible unmet care needs. It should therefore have commissioned care to meet those needs without delay. The failure to do so was not in line with the duty to meet eligible needs in Section 18 of the Care Act 2014. The Council also failed to consider using the powers in Section 19 to meet urgent needs (which may have applied had the Council felt it needed to carry out a further social care assessment when finding out Ms Y had moved back to Scheme A.)
6. The Council’s first FA for Ms Y’s care contribution was in March 2022. This was three months after she was admitted to the care home and the delay was fault.

Did the fault cause injustice and if so, has the Council already provided a suitable remedy?

54. The fault described in paragraph 53 (f) did not cause any injustice because the Council reviewed all Ms Y’s FAs as part of its complaint response. Those reviews resulted in a nil care contribution for Ms Y for the period she was in the care home once her housing benefit stopped. The Council also made additional payments towards Ms Y’s arrears at Scheme A. This means she has no financial loss for the period she was in the care home.
55. The fault described in paragraph 53 (a) to (e) caused:
• Avoidable distress, frustration and time and trouble for Ms X
• Avoidable uncertainty about whether Ms Y might have been able to return to HWC in Scheme A sooner
• Restriction on Ms Y’s freedom to contact her family and partner. This could have been avoided if a move back to Scheme A had been facilitated sooner by the Council commissioning a suitable care package at Scheme A. There was no legal reason Ms X could not have returned to her flat with a council-commissioned care package. She had an assured tenancy and the Council could have commissioned care at any time once it was satisfied her needs could be met by a package of home care.
• An avoidable financial loss of having to pay for a care package organised privately because the Council delayed commissioning care from an external agency.
56. The Council has already provided a satisfactory remedy to recognise the injustice set out in paragraph 55. It apologised and refunded the cost of Ms Y’s private care package net of her client contribution as an outcome to Ms X’s second complaint. The Council also made symbolic payments totalling £1500.
57. I am not making any recommendations for changes to policy or procedure, because the Council has already amended the relevant procedures which will minimise the risk of the same thing happening again.

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Final decision

58. We upheld Ms X’s complaint. There was delay by the Council in completing social care assessments, drawing up care and support plans and commissioning a care package to enable Ms Y to return to her flat rather than remain in a care home for almost two years. There was also a failure to participate in best interests decisions around her care and support and housing. This caused avoidable distress and meant Ms Y was unable to see her partner. Ms Y/her family also incurred an avoidable financial loss because she/they paid for care privately. The Council has already taken appropriate action by apologising, reviewing financial assessments resulting in no care charges, making symbolic payment to reflect distress and refunding private care fees.
59. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman