Summary: There was no fault in the way the Council decided to offer Mr E temporary care at a care home or its attempts to find extra care housing for Mr E. The Council should have informed the family sooner that the care home placement had become permanent but this would not have made a difference to the outcome. There was no fault in the Council’s communications with the family, except that there was no record that the Council told the family what the care home’s rate was during an initial conversation. The Council has agreed to reduce the outstanding debt by the equivalent of two weeks’ contribution.

The complaint

1. Mr D complains on behalf of his father-in-law, Mr E, who has sadly passed away.
2. He says the Council placed Mr E in a care home on a temporary basis and told the family that the placement was free. He says the Council failed to involve the family in the decision-making regarding Mr E. He says the family wanted Mr E to move to extra care housing, but the Council failed to support Mr E in this.

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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. 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. I have discussed the complaint with Mr D. I have considered the evidence he and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

6. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) 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.
7. 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.

Financial assessment

8. 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.
9. If a person refuses a financial assessment or the council is unable to carry out a financial assessment because of the adult’s refusal to cooperate with the assessment, then the local authority is treated as having carried out the financial assessment.

Contribution to the costs

10. People in a care home will contribute most of their income, excluding their earnings, towards the cost of their care and support. However, a local authority must leave the person with a specified amount of their own income so that the person has money to spend on personal items such as clothes and other items that are not part of their care. This is known as the personal expenses allowance.

Temporary resident

11. A temporary resident is someone admitted to a care home for a limited period, such as respite care, or there is doubt a permanent admission is required. The person’s stay is unlikely to exceed 52 weeks.
12. Because a temporary resident is expected to return home, their main or only home is usually disregarded in the assessment of whether and what they can afford to pay.
13. Income and earnings should be treated in the same way as for permanent residents. However, any additional amounts the person may need so they can maintain their home during their temporary stay so that it is in a fit condition for them to return to must be disregarded. Such expenses may include, but are not limited to, ground rent, service charges, water rates or insurance premiums.

What happened

14. Mr and Mrs E lived together in a one-bedroom flat rented from a housing association.

Safeguarding referral – 27 July 2020

15. On 27 July 2020 Mr D made a safeguarding referral to the Council regarding physical and emotional abuse by Mrs E to Mr E.
16. The Council’s social worker visited Mr and Mrs E on the same day. She said the couple were struggling to manage their relationship because of space constraints and a change in circumstances.

Care plan – 27 July 2020

17. The social worker carried out an assessment of Mr E’s needs. Mr E was not able to orientate to the time of day and found it hard to remember his address. He presented as confused with poor recall of information.
18. The social worker offered a respite residential placement to Mr E but he refused this.
19. The social worker recommended the following care plan:
• Mr E would attend a day centre for two days a week to give the couple some time apart.
• A care worker would attend every day for one hour to support Mr E with showering, grooming, getting dressed, support in medications and breakfast. This would also give the care worker the chance to check up on Mr E.
20. The personal budget (cost of the weekly care package) was £281.88. The social worker noted that the couple had been made aware that the Council would carry out a financial assessment to determine what the contribution would be towards the cost of the care package.

Safeguarding referral – 30 July 2020

21. The Council received a second safeguarding referral on 30 July 2020. Mr D said Mrs E had given Mr E sleep medication that was prescribed for her, not for him. Mr E went to live with Mr and Mrs D. He later moved back to live with Mrs E on 7 September 2020.

Mr D’s email – 8 September 2020

22. Mr D emailed the Council on 8 September 2020 and informed them that Mr E had moved back to live with Mrs E. He said Mr E was waiting for a formal diagnosis of dementia from the Memory Clinic but the family had observed a decline in Mr E’s short term memory. Mr D asked the Council to reinstate the care package that it had previously installed.
23. The social worker rang Mrs D. Mrs D wanted Mr E to move into extra care housing in a particular area. The social worker explained that vacancies could not be guaranteed. The social worker noted that the family had not returned the financial assessment form that had been sent previously. The social worker arranged the care package to start on the following day.

Safeguarding referral – 10 September 2020

24. The Council received a safeguarding referral after the police were called regarding an allegation of threatened physical abuse by Mr E. The social worker contacted Mr and Mrs D. The social worker said that she would arrange immediate respite care for Mr E at a residential placement to ensure that he was safe and supported but it would depend on whether she could find a placement.
25. Mr and Mrs D said Mr E should move to extra care housing. The social worker explained that extra care housing may not meet Mr E’s needs as he gets up at all hours during the night and wanders off. Mr and Mrs D eventually agreed that Mr E could move to a care home on an emergency respite basis. Mr and Mrs D said that, if the social worker was unable to find a residential placement, then they would agree to Mr E returning to live with them.

Move to the care home – 11 September 2020

26. The social worker found a placement at a care home for people with dementia+ at short notice and Mr E moved in on the following day. The care plan said the personal budget (weekly cost) was £632.98 per week.
27. The social worker sent an email to Mr D on 10 September 2020. She attached a financial assessment form to be filled in. She said: ‘When you have time I don’t want your father to be charged full cost and this will ensure he charged what he can afford a minimal amount for the respite.’
28. The social worker rang Mr D on 16 September 2020. They discussed supported (extra care) living but the social worker explained the risks that this would present which could not be managed in extra care housing. Mr E left taps running. He was wandering out during the day and at night, smoked and would be in dangerous situations if he were living in extra care housing. The family agreed that they could not cope with Mr E if he was to return to live with them. If he were to stay with them again, it would be for a few hours or maybe an overnight stay.
29. The Council wrote to Mrs D on 24 September 2020 and chased the financial assessment form. The letter said Mr E ‘will be provisionally charged the full cost of his placement at [the care home] until the receipt of the financial form. The current full charge is £632.98 per week.’
30. The social worker rang Mr D on 24 September and explained again that, if the financial assessment form was not returned, Mr E would be charged at full cost. Mr D said he would complete and return the form. Mr D said he had spoken to Mr E’s housing association as he still wanted Mr E to move to extra care housing. The social worker said this would be ‘high risk’ but understood why they wanted to try.
31. On 7 October 2020 the social worker rang Mr D to chase him to complete the financial assessment form as he had been sent the form a long time ago. She said it needed to be completed as otherwise Mr E would be charged at full cost. Mr D said his dog had died and started to talk about Mr E. At the end of the conversation the social worker reminded Mr D again to return the financial assessment form.
32. A file note dated 28 October 2020 said Mr and Mrs D wanted extra care housing for Mr E, but it was questionable whether this would be safe considering his needs. The note stated that Mr D had still not completed the financial assessment despite ‘repeated times being asked to’.
33. On 18 November 2020 the social worker made a referral to Mr and Mrs E’s housing association and a referral to an extra care housing placement to assess him for eligibility for extra care housing.
34. Mr and Mrs D sent an email to the social worker on 30 November 2020. They felt Mr E should not be living in a care home but should live in extra care housing (assisted living). They felt that he was different from the other people in the care home as his dementia (not yet diagnosed, but a diagnosis was expected) was in the early stages. They believed Mr E suffered from PTSD. They wanted him to move so that he could live closer to them.
35. The Council received the outcome of the assessments for extra care housing on 4 December 2020. It was reported that Mr E spent the night awake walking around the building. He often displayed aggressive behaviour. He sought 1:1 support with a staff member during ‘all his waking hours’. These needs could not be met in extra care housing and Mr E’s needs could only be met in a care home for people with dementia.
36. On 8 December 2020 the social worker made a referral to the Council’s extra care housing to find out whether they would accept Mr E.
37. The date is not clear from the records (either 13 or 22 December 2020) but the Council’s extra care housing declined Mr E’s application.
38. The social worker emailed Mr D on 22 December 2020. She asked him what long term options the family was considering now that Mr E had been turned down for extra care housing. The social worker asked Mr D to contact her to discuss the options. She also attached the financial assessment form again and asked him to complete it.
39. The social worker rang Mr D on 23 December 2020. She said he was not returning her calls or answering her emails.
40. Mr D replied on 4 January 2021 and said they had not been aware that Mr E had been turned down for extra care housing. He felt that Mr E may be suffering PTSD because of Mrs E. He felt that, until the official diagnosis from the memory clinic was received, they did not know what level of care Mr E needed. He had completed the financial assessment form and returned it, but it was his understanding that respite care was free.
41. The social worker noted on the same day: ‘Email from son in law advising he was not told he would have to pay for services despite being sent emails with FA1 several times. Now saying he has sent it in. If this was the case, he could have emailed and advised of this but have not had an email until late last night.’
42. The social worker replied on the following day and said Mr E’s placement at the care home met his needs. She had not been told that Mr E was unhappy. She was waiting to hear back from the Council’s finance department whether they had received the financial assessment form. She offered to assist to move Mr E nearer to Mr and Mrs D (who lived in a different local authority area) but asked whether the couple wanted her to pursue extra care housing or a care home.
43. Mr E received a diagnosis of mixed dementia on 8 January 2021.
44. The social worker emailed and phoned Mr D on 21 January 2021 to inform him that the Council had not received the financial assessment form. She emailed the form again.
45. The notes said Mr D was not responding to emails or telephone calls in the following weeks.
46. The social worker contacted the Home on 28 January 2021 to find out how Mr E was as Mr D was not replying to her emails or telephone calls.
47. The Home contacted the social worker later that day as they had spoken to Mr D. Mr D was aware of the dementia diagnosis but believed that Mr E had PTSD. The Home had explained that Mr E did not show signs of PTSD.
48. On 31 January 2021 the Council agreed to make the funding for the care home placement permanent.
49. The Council wrote to Mrs D on 17 February 2021 and chased her for the financial assessment form. It said that, until the form was returned, Mr E would be charged the full cost of the placement. The social worker rang Mr D on 25 February 2021 but was unable to speak to him.
50. The case was reviewed on 26 February 2021. The note said: ‘client contribution not paid, daughter and son in law not answering phones… if the family continues to ignore the request to complete FA1. It will need reallocating to another worker to follow up tasks.’
51. The Council’s finance officer contacted the social worker on 22 March 2021 and said Mr E’s outstanding debt was £13,071.83 and the Council was going to pass the account to a debt collection agency.
52. The social worker tried to ring Mr and Mrs D on 22 March 2021 but was unable to get through.
53. The finance officer emailed Mr D on 26 March 2021 and said the Council would charge Mr E at the full cost rate until the financial assessment form was returned. The Council said that, if the form was not returned within 14 days, the matter would be escalated for debt recovery.
54. The finance officer spoke to Mr D on 26 March 2021 and emailed him the form again. She said he had to return the form within 14 days or the matter would be escalated to a debt collection agency.
55. Mr D contacted the Council on 4 April 2021 to complain about the finance officer. He said he had spoken to her and she had not listened to anything he said and had shown no compassion. The Council contacted Mr D and explained the role of the finance officer. The Council apologised if the officer had come across as uncaring. Mr D had now provided the financial assessment so the invoices would be updated accordingly.
56. The deprivation of liberty assessment (DoLS) process was completed in April 2021. A psychiatrist assessed Mr E on 10 April 2021 and said he lacked mental capacity to decide whether he wanted to live. Mr E’s family and the professionals involved agreed that it would be in Mr E’s best interests to remain in residential care.

Mr D’s complaint – October 2021

57. Mr D complained to the Council on 3 October 2021. I have summarised the complaint insofar as it is relevant to the complaint that I am investigating. Mr D said:
• Mr E was placed in the care home by social services on a temporary/respite basis because of the abuse he suffered from Mrs E.
• He was unable to leave because of the COVID-19 restrictions and was ‘a prisoner in the care system.’
• The family was told the move would be temporary until alternative housing with housing association 1 or the Council would be found.
• Mr E was still a tenant at housing association 1 and the Council failed to work with the housing association to find him housing.
• The Council made the placement permanent, without his or the family’s consent or communication, while Mr E continued to have financial responsibility at home.
• The Council did not inform the family or seek confirmation from the family before making decisions about making the placement permanent.
• The family had had been told that the respite care would be free for up to a year.
58. The Council responded and said:
• It explained the background to Mr E’s admission to the care home. The move to the care home which specialised in dementia was the best available option in an emergency to address the safeguarding issue. Mr and Mrs D were advised of the Council’s proposed actions and involved in the decision making.
• The Council knew that Mr and Mrs D wanted Mr E to move to extra care housing. The Council had tried this option but the assessments of Mr E in November and December 2020 showed that this would not meet his needs. The extra care housing providers refused to accept Mr E in the placements.
• The Council had sent the financial assessment forms to the family on several occasions and by December 2020 the form had still not been returned.
• The Council extended the temporary placement until the end of January 2021 to give the family the time to decide on a permanent placement. The placement was then made permanent.
• The Council was supporting a move to a care home nearer Mr and Mrs D.
• Once the Council received the financial assessment form, it updated the calculation of the contribution and backdated this to 11 September 2020.

Further information

59. I asked the Council why there was a delay in completing the DoLS process. The Council said this was due to the COVID-19 pandemic which caused delays in assessments.
60. I asked the Council whether the social worker informed Mr D what the care home’s rate was during the initial conversation when the emergency placement was found on 10 September 2020. The Council said the rate was noted in several records but the social worker had not recorded whether she told the family the rate at the initial conversation.
61. The Council agreed, as a goodwill gesture, to refund two weeks of contribution.

Analysis

62. I find no fault in the way the Council decided to move Mr E to a care home on a temporary basis. The relationship between Mr and Mrs E had broken down and it was not safe for the couple to stay in the same home. Mr E was unable to live independently and needed support. The Council was faced with an emergency and had to find a placement very quickly. It found a placement that met Mr E’s needs at short notice.
63. I note the social worker spoke to Mr and Mrs D on 10 September 2020 to explain the move to the care home. Mr and Mrs D did not object to the move.
64. I agree the move was initially on a temporary basis. Mr D says the Council told the family that respite/temporary care was free for up to a year. I cannot find any evidence of this.
65. There was, however, a lot of evidence of emails, letters and telephone calls where the social worker explained to Mr D, from the outset, that he had to return the financial assessment form or otherwise Mr E would have to pay the full cost of his care. The Council sent the form to Mr D multiple times and continued to chase him. There was never any doubt from the beginning that Mr E would have to make a contribution to the care home fees and that the financial assessment form had to be filled in. I also note that Mr D agreed to return the form on several occasions and never questioned this. This suggested that he understood the need for the form to be filled in.
66. The records do not say whether the social worker told Mr D what the care home rate was. I agree there was some fault in not recording this, but the injustice would be limited. It is clear from the records that Mr D was informed that Mr E would have to pay the full rate if he did not fill in the financial assessment form. It is also clear that the rate was in the records so if Mr D had not been informed of the rate, he could have asked for it.
67. Ultimately, the care home rate was not that relevant as the contribution that Mr E would have to pay was determined by the financial assessment, not the care home rate. The Council sent a letter on 24 September 2020 which informed Mr and Mrs D of the rate. I note the Council has agreed to reduce the outstanding debt by the equivalent of two weeks’ contribution to reflect the failure in the record keeping and I do not recommend any further remedy.
68. I accept that there may be differences in the calculation of the financial contribution when a person is in temporary care rather than in permanent care.
69. However, that is why the financial assessment was so important. It was up to Mr and Mrs D to provide the financial information to show whether Mr E had any costs which could be considered in the financial assessment and which would reduce the amount of contribution he would have to pay.
70. I do not uphold Mr D’s complaint that the Council did not pursue extra care housing sufficiently. The records show the Council asked different providers of extra care housing to assess Mr E’s suitability for extra care housing. Unfortunately, all the providers agreed that extra care housing would not meet Mr E’s needs. Mr E needed more care than extra care housing could provide and therefore he needed a residential placement for people with dementia. The Council had to consider this as part of its care planning. I know Mr and Mrs D disagreed but I cannot question the merit of a decision if there was no fault in the way it was reached.
71. I have also considered Mr D’s complaint that Mr E was unable to leave the care home because of the COVID-19 restrictions. I agree that the COVID-19 pandemic would have temporarily restricted Mr E’s movements while he was in the care home. However, he could have moved to a different placement if a suitable placement could be found. The main issue was that Mr E had been assessed as needing a care home for people with dementia and the professionals were of the view that extra housing would not meet his needs so the Council was unable to find an alternative for Mr E to move to.
72. I note that the social worker contacted Mr D in December 2020. The social worker asked Mr D what the family wanted to do as a long-term option. She asked him to contact her. She offered to find care homes nearer Mr and Mrs D if that is what the couple wanted. The formal diagnosis of dementia was made on 8 January 2023. There was no further communication from Mr and Mrs D in the following weeks, so the Council made the decision to make the placement permanent.
73. I find no fault in that respect as the social worker tried to involve Mr and Mrs D in the decision making. And ultimately, if she was unable to do so, decisions had to be made. The Council made the decision that Mr E could stay at the care home permanently, but this decision was not irreversible. If Mr and Mrs D wanted Mr E to move to a different care home, then he could move and it is my understanding that the Council is in the process of considering a move.
74. I do think the Council should have informed Mr and Mrs D that the placement was permanent when it made the decision. However, I do not think Mr and Mrs D suffered any injustice because of this. Ultimately, the Council had asked Mr and Mrs D in January 2021 what options they wanted for Mr E and, if Mr and Mrs D had wanted another placement, which would accept Mr E, then they could have informed the Council.
75. There was a delay in completing the DoLS process, but it is unlikely this affected the outcome. The fact remained that the professionals all assessed Mr E and all agreed that he could not move to supported housing as his needs could not be met there.

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Agreed action

76. The Council has agreed to deduct the equivalent of two weeks’ contribution from the outstanding debt.

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Final decision

77. There was some limited fault in the record keeping relating to the conversation on 10 September 2020 and the Council should have informed the family earlier that the placement had been made permanent. However, these issues were unlikely to have affected the outcome. The Council has, in any event, agreed to deduct two week’s contribution from the outstanding debt.

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Investigator's decision on behalf of the Ombudsman