Summary: Mr X complains about the Council’s advice about costs and decisions it made when his mother moved into a care home. The Council was at fault for not providing Mr X with suitable advice. This caused Mr X avoidable uncertainty. To remedy this injustice, the Council has agreed to apologise to Mr X and review its procedure for providing advice about costs for residential care.

The complaint

1. Mr X complains on behalf of his mother, Mrs Y, that:
1. the Council did not properly consider whether his mother could be cared for at home;
2. the Council failed to give him clear advice about funding options for Mrs Y’s care;
3. the Council failed to give him advice about choices of care homes; and
4. the Council’s involvement in the decision making around Mrs Y’s entitlement to Continuing Healthcare Funding was flawed.
2. Mr X says this has meant his mother has to pay for care that she should receive free. He also says it means the Council placed his mother in a care home against her wishes and that this breaches her human rights. He says this has caused him significant distress.

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What I have investigated

3. I have investigated Mr X’s complaint about the Council’s advice about funding options and care home choices. I have also investigated Mr X’s complaint about whether Mrs Y could be cared for at home.
4. I did not investigate Mr X’s complaint about the Council’s involvement in the decision making for Mrs Y’s entitlement to CHC. This is because the decision to award CHC was made by the Clinical Commissioning Group (CCG) responsible for the hospital where Mrs Y stayed. The Ombudsman cannot investigate actions taken by CCG’s, this is for the Parliamentary and Health Service Ombudsman.

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The Ombudsman’s role and powers

5. 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)
6. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. 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

8. We have considered:

• all the information Mr X provided and discussed the complaint with him;
• the Council’s comments about the complaint and the supporting documents it provided; and
• relevant law and guidance and the guidance on remedies.

9. Mr X and the Council 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

Assessment of care needs

10. Sections 9 and 10 of the Care Act 2014 required councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people 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. The council must involve the individual and whether suitable their carer or any other person they might want involved.
11. If the adult has eligible care needs the Council will prepare a care and support plan that sets out how their needs can be met. The care and support plan may include a personal budget which is the amount the council calculates will be needed to arrange the support set out in the plan.
12. The Care and Support Statutory Guidance 2014 states all reasonable efforts should be taken to ensure that councils provide information and advice which meets the individual’s requirements, is comprehensive and is given at an early stage. This includes information about the costs of care.

Charging for care in care homes

13. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
14. The rules state that people who have over the upper capital limit must pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.

NHS Continuing Healthcare and NHS-funded nursing care

15. The NHS is responsible for meeting the full cost of care in a care home for residents whose primary need for being in care is health-based. This is called NHS Continuing Healthcare funding (CHC). Complaints about NHS CHC are dealt with by the Parliamentary and Health Service Ombudsman.
16. Where someone with nursing needs is living in a care home, but the primary reason for being in care is not health-based, they may be eligible for NHS Funded Nursing Care (FNC). Through FNC the NHS meets the cost of care provided by registered nurses to residents in care homes. FNC is funded at a single rate in 2014/15 of £165.56 per week.

Choice of care homes

17. The (Choice of Accommodation) Regulations 2014 (SI 2014/2670) sets out what people should expect from a council when it arranges a care home place for them. It says that once a needs assessment has determined what type of accommodation will best suit the person’s needs, the person will have a right to choose the particular provider or location, subject to certain conditions.

Mental Capacity

18. 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. 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.
19. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative.

What happened

20. In early 2019, Mrs Y lived at home with a support package that she paid for herself. In August 2019, Mrs Y was admitted to hospital. During her hospital stay, medical staff decided Mrs Y needed 24-hour nursing care.
21. The Council completed a care needs assessment for Mrs Y in mid-August 2019. As part of the assessment, a Council social worker spoke with Mr X. The Council found Mrs Y had eligible needs and considered a range of care arrangements for her, including whether she could return home with a care package. It decided
    Mrs Y needed full-time care in a nursing home.
22. Council records state Mr X agreed Mrs Y could not be supported at home, that he thought Mrs Y was eligible for continuing health care (CHC) funding and that he was unwilling for Mrs Y to contribute to any care costs.
23. To arrange Mrs Y’s care, the Council contacted 15 care homes. Two care homes offered Mrs Y a room, but Mr X was not willing to accept one of them. He later agreed that Mrs Y could move into the other home.
24. Mr X says he felt pressured into accepting that care home because it was the only suitable option, even though he wanted Mrs Y to return home. Mr X continued to say he was not willing for Mrs Y to pay for her care costs.
25. The Council says that in late August 2019 it told Mr X that Mrs Y would not have to pay for her care costs until a decision had been made about her eligibility for CHC funding. The Council says it verbally explained that if Mrs Y was not eligible for CHC funding, she would need to have a financial assessment. There is no evidence the Council told Mr X that if Mrs X had more than the upper capital limit she would need to pay the full cost for her care. There is also no evidence the Council explained how care costs are calculated.
26. Mrs Y moved into the care home one day later.
27. In early September 2019, a Decision Support Tool (DST) meeting was held to decide Mrs Y’s eligibility for CHC funding. The DST found Mrs Y did not qualify for CHC funding, but was eligible for funded nursing care (FNC). The Council said Mrs Y would have a financial assessment to decide how much she should be contributing to her care costs.
28. Mr X was unhappy with the outcome of the DST and appealed the decision. Mr X wanted to bring Mrs Y home, but the Council felt it was in Mrs Y’s best interests to remain in the care home.
29. In early September 2019, the care home requested a DoLS authorisation. The Council contacted Mr X about the request, who agreed to a six-week authorisation. This was to allow the Council time to hold a Best Interests meeting to resolve the dispute about how to meet Mrs Y’s care and support needs and where she should be living.
30. In mid-October 2019 Mr X asked the Council to delay the Best Interests meeting until he had the outcome of his appeal against the DST decision and his complaint to the Council.
31. In late October 2019, the Council granted a further DoLS.
32. In December 2019, the Council completed its financial assessment. It wrote to Mr X and told him Mrs Y’s assets were above the capital limit and she would need to pay for her care in full. It also told Mr X that if Mrs Y’s capital fell below the limit she may become eligible for support from the Council. It explained Mr X would need to contact the care home for details of the amount it would charge.
33. In January 2020, the CCG held Mr X’s DST appeal. The appeal upheld the original decision that Mrs Y was only eligible for FNC. Mr X was unhappy with the outcome but accepted that Mrs Y could not be cared for at home and required 24-hour care.
34. In February 2020, Mr X told the Council he was willing to make Mrs Y’s placement permanent. The Council decided not to arrange the Best Interests meeting once Mr X agreed Mrs Y need to stay in the care home. The Council then issued Mr X with factsheets about paying for residential care.

Findings

Decision to place Mrs Y in a care home

35. The Council assessed Mrs Y’s needs. It considered whether she could be supported at home but decided she needed to be cared for in a nursing home. This was because she had been receiving an extensive care package at home but this was no longer sufficient to ensure her safety. There was no fault in the way it decided this.
36. Mr X was unhappy with the Council’s decision that Mrs Y needed to be in a care home, but I cannot comment on a decision made without fault.
37. Mr X says Mrs Y did not want to move to a care home. However, by this point she did not have capacity to make decisions about her care. The Council arranged a meeting to make a Best Interests decision, which is the correct way to determine what should happen when a person has lost capacity to make the decision for themselves. Mr X asked the Council to delay this meeting until he had received the outcome of the CHC appeal and his complaint to the Council. The Council agreed to postpone the meeting.
38. The failure to make a Best Interests decision in November 2019 was fault. A Best Interests decision was needed to clarify what should happen, particularly given  Mr X did not agree Mrs Y should stay in the care home. However, this fault did not cause any injustice because Mrs Y remained in the care home throughout and
    Mr X later agreed she should stay there.
39. Having decided Mrs Y needed to be in a care home and having placed her there, the granting of a DoLS authorisation was appropriate.
40. Mr X complains the Council did not give Mrs Y a choice of care home. The guidance says councils must identify at least one suitable care home and should offer a choice. In this case, the Council contacted 15 care homes and identified two possible care homes that had availability and could meet Mrs Y’s needs. Although Mr X was unhappy with one of those choices, I am satisfied the Council fulfilled its duty to provide a choice of accommodation and was not at fault.

Costs information and care home options

41. When arranging care and support, councils must provide sufficient advice and information for the person needing care and their representatives to understand the financial implications of the decisions made about the care.
42. The Council did explain Mrs Y would not have to pay her care costs until a decision was made about whether she was eligible for CHC funding and that if she was not eligible for CHC funding it would need to carry out a financial assessment. However, it is not clear that it gave any advice about capital limits or explained that if Mrs Y had capital above the upper capital limit she would have to pay for her care in full until December 2019. Nor is it clear there was any discussion about the costs of residential care. The Council directed Mr X to the care home in December 2019 to find out what Mrs Y’s care costs were. The failure to provide information about the likely costs of care in August 2019 was fault.
43. Mrs Y needed to be cared for in a care home and because she had more capital than the upper capital limit she did need to pay for this in full herself. Therefore, the injustice caused is the uncertainty about what she would need to pay between early September 2019 and December 2019 when the Council provided the information.

Agreed action

44. Within one month of the date of this decision:

• the Council will apologise to Mr X for failing to give him clear advice about the costs of Mrs Y’s care before she was discharged into the care home.

45. Within three months of the date of this decision:

• the Council will review its procedure for sharing information about care charging. It will ensure it shares relevant information at an early stage and, wherever possible, before a final decision is made about the care to be provided; and
• the Council will remind staff of the purpose and procedure for Best Interests meetings, and the need to avoid delay in making Best Interest decisions.

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Final decision

46. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

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Investigator's decision on behalf of the Ombudsman