Summary: Mrs Y, on behalf of Mrs X, complained the Council delayed completing a financial assessment for Mr X’s package of care and then produced an incorrect assessment causing distress. The Council accepts fault in this case and has now paid the money owed. A suitable remedy for the injustice is agreed.

The complaint

1. Mrs Y, on behalf of Mrs X, complained the Council delayed completing a financial assessment in respect of Mr X’s package of care and then produced an incorrect assessment. This delay meant Mrs X had to use her own savings limiting her choices regarding the future for herself and her husband.
2. The uncertainty regarding the care costs has caused significant distress and affected Mrs X’s mental health.

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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 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)
4. 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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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant’s representative;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant’s representative;
• sent my draft decision to both the Council and the complainant’s representative and taken account of their comments in reaching my final decision.

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What I found

Direct payments

6. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.

Mental Capacity Act

7. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.

Mental capacity assessment

8. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

9. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
10. An assessment of someone’s capacity is specific to the decision to be made at a particular time.

Lasting Power of Attorney

11. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
12. There are two types of LPA.

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

13. An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.

Key facts

14. This section sets out the key events in this case and is not intended to be a detailed chronology.
15. Mrs X arranged care privately for Mr X in March 2021 following his discharge from hospital. This is 24-hour care provided in their home. After spending most of Mr X’s savings, Mrs X contacted the Council in August 2022 to ask for financial assistance.
16. The case notes dated October 2022 indicate the case was waiting to be allocated to a social worker. The Council sent information by post about charging. Mrs X contacted the Council several times to chase the financial assessment. The case notes indicate a telephone discussion took place in January 2023. The Council told Mrs X that live-in care could not be funded and Mrs X explained a previous experience and that she did not want her husband to go into a nursing home. The Council said a mental capacity assessment would be needed as there was no lasting power of attorney for health and wellbeing, only for finances. As a result of the conversation, the Council put the case on the urgent list for allocation as soon as possible.
17. A home visit was carried out on 10 March 2023. Following this the social worker sought clarification on how savings are treated for financial assessments when they are married but have separate bank accounts. On 24 March the case notes show a request for an urgent assessment and clarification on costs. Mrs X said she was seeking a direct payment of the amount of a funded nursing home placement and that she would pay a top up so Mr X could remain at home.
18. A mental capacity assessment was completed on 4 April following a home visit with Mr and Mrs X on 30 March. The MCA found Mr X did not have capacity to make decisions about where he lived and how care was provided.
19. The Council completed an assessment of Mr X’s care needs and then asked Mrs X to provide information to complete the financial assessment. Mrs X says the information requested was complicated and that it took a long time for her to provide it to the Council. Mrs Y says the social worker was unable to upload the information onto the Council’s system and so sent another form for Mrs X to complete which was straightforward.
20. The Council completed the financial assessment in August 2023. It said Mr X would need to pay the full cost of his care. The Council spoke with Mrs X on 18 August to say it would not process the direct payment as there would be no financial benefit. Mrs X said she had already paid more than £250,000 for her husband’s care and could not understand why joint account funds had been taken into account as part of the financial assessment.
21. Mrs X submitted an appeal against the full cost decision on 18 September 2023. Mrs X said that their joint account was split in August 2023 when the financial assessment was carried out. However, she argued this should have been done in October 2022 when she first requested help. Mrs X also complained about the difficulties she had with the financial assessment process.
22. The Council agreed to look into the case. On 7 November it asked Mrs X to provide further evidence of household and disability related expenditure. The financial assessment was completed in December 2023.
23. The Council wrote to Mrs X on 27 December 2023 in response to her appeal. It apologised for the delay in completing the reassessment and contacting Mrs X noting she had made the request on 18 September. The Council said that it normally tries to complete a financial assessment within four weeks of the request and that it failed to do this. It apologised for the delay and acknowledged Mrs X found the process confusing.
24. The Council accepted the initial assessment was incorrect and apologised for this error. It confirmed the reassessment and that funding for Mr X’s care would be paid from 25 October 2022.
25. Mrs X contacted the Council again on 27 January saying she did not consider the apologies offered were sufficient to mitigate the impact on her. She noted that the Council found Mrs X was correct in respect of all the issues she raised. Mrs X says that had she known when she first contacted the Council that only half the costs would be met then she would have made very different decision. She said the delays by the Council meant her choices were limited for both her husband’s on going care and her own future. Mrs X asked for financial compensation for the stress experienced. The Council replied, apologising again but declined her request for compensation.

Analysis

26. The Council has accepted fault in this case. While it has apologised to Mrs X for its failings it declined her request for a compensation payment. While the Ombudsman does not make compensation awards, we can consider whether a financial remedy for any injustice suffered is appropriate.
27. Mrs X says that she contacted the Council when her husband’s savings had been depleted due to being spent on full time care in their home. The Council’s delay in completing the financial assessment meant Mrs X had to then use her own savings to pay for Mr X’s care. This was frustrating and distressing and the number of contacts made by Mrs X to the Council to chase the assessment supports this.
28. Mrs X says the delay by the Council in completing the financial assessment and letting her know how much it would contribute meant she was unable to make informed decisions about the future. She says that her considerations included downsizing to another property to free up equity from her current house which would ensure she had enough money for future. She says that by the time the Council completed the financial assessment she had used much of her own savings and so she could not afford to do this.
29. The delay by the Council did cause distress, frustration and put Mrs X to avoidable time and trouble in pursuing the assessment. I consider a payment to recognise this injustice is appropriate. The Ombudsman’s guidance on remedies says we would normally recommend a payment for distress of up to £500. I consider this is an appropriate amount taking into account the length of time involved, the vulnerability of Mr X and that Mrs X is elderly herself and a full time carer.
30. However, it is not possible for me to know what Mrs X would have done if the delay had not happened. When the matter was eventually resolved, the Council paid a lump sum for the 15 months of missed payments. This would have replaced some of the money Mrs X had spent on Mr X’s care. The amount the Council paid was not the full cost of the care. Mrs X says that it did not tell her this from the start. While it is true there was no actual figure provided, I have seen evidence the Council gave information about what it would fund and that it indicated it was unlikely to fund live in care but could make a payment equivalent to the cost of a nursing home placement.
31. There is evidence that Mrs X agreed she would make a top-up payment to cover the difference in the cost of a nursing home placement and the live in care. I have not seen any evidence which amounts to a promise from the Council that it would pay the full cost of the live in carers. I am therefore not persuaded any further payment is applicable in this case as there is no evidence of quantifiable loss because of the fault in this case.

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Agreed action

32. To remedy the injustice caused as a result of the fault in this case, the Council should, within one month of my final decision, make Mrs X a symbolic payment of £500 to recognise the distress suffered.
33. The Council should also provide an action plan showing the steps it has taken or intends to take to ensure cases are now being allocated promptly and that it is completing financial assessments within its four week target time.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman