Summary: Mr C complained about the information the Council gave to him about care fees when his brother Mr D moved into a care home. We have not found fault with the information provided but we consider the Council should have considered Mr D’s capacity in relation to the financial assessment and provided copies of information to Mr C. It also delayed excessively in responding to Mr C’s complaint. The Council has offered to pay Mr C £250 which we consider is a reasonable symbolic payment in line with our guidance. The Council has also agreed to review its social care complaints procedure.

The complaint

1. Mr C complained that the London Borough of Lambeth (the Council) failed to correctly advise him about the level of fees when his brother Mr D went into a care home in February 2022; specifically whether the quoted amount included the Funded Nursing Care (FNC) contribution. Mr C discovered in July 2023 that the FNC was already in payment and would not be deducted from the care charges. Mr C also complained that the Council delayed excessively in responding to his complaint about the matter. This has caused Mr C significant distress and inconvenience at a very difficult time. He has also been caused uncertainty as to whether he made the right decision in respect of Mr D’s care.

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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. 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

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr C 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

Charging for permanent residential care

5. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
6. When the council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
7. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.
8. The statutory guidance requires the council to be clear and transparent, so people know what they will be charged.

Mental Capacity Act

9. 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.
10. 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.
11. An assessment of someone’s capacity is specific to the decision to be made at a particular time.

Best interest decision making

12. 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. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.

Lasting Power of Attorney

13. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. 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.
14. 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.

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

Council’s complaints procedure

16. The Council operates a two-stage corporate complaints procedure. The first stage is local resolution where the Council says it will respond within 20 working days of receipt of the complaint The second stage is a final review and the Council says it will respond within 25 working days of receipt of the request.
17. In respect of social care complaints the Council says the timescale for a complaint should be negotiated with the complainant. It says low risk complaints should be completed within 25 to 30 working days, moderate risk within 25 to 35, high risk between 25 and 60 and severe within 60.
18. Low risk includes lack of information or information not given in the correct format. Moderate risk includes miscommunication or misinformation.

What happened

19. Mr C’s brother Mr D went into residential care in February 2022 following a fall and a stay in hospital. Mr D was deemed not to have the capacity to make a decision about his long term care needs and so a best interests decision was made (involving Mr C) that he should go into a care home. All parties were in agreement, including Mr C and Mr D, that this was the best option for him.
20. Mr D did not have LPA for Mr C.
21. On 16 February 2022 the Council wrote to Mr D at the home to inform him of the outcome of the financial assessment: that the cost of the care would be £790.02 per week and he would pay the full charge because he did not wish to disclose any of his financial details. The letter also said

“If any of the above rates state "Full Charge" you will be expected to pay the full cost of the residential placement agreed for you. The exact amount will depend on the home price and any other contributions being made toward that cost.”

22. In April 2022 the Council sent another letter to Mr D at the care home confirming the financial assessment for the financial year 2022/23. Again, this stated that Mr D would pay the full cost of his care which was now £850.92 per week. It repeated the paragraph about the exact amount being dependent on the home price and any other contributions.
23. The Council says on 11 May 2022 Mr C sent an email to the Council querying if £790 a week included everything. The Council said it did not answer this email. Mr C says he was referring to any extras such as food and not the FNC as he was not aware of it at this stage. FNC is an amount paid by the NHS to cover the nursing component of the care fees.
24. On 5 July 2022 the Council reviewed Mr D’s placement. The Council noted Mr D was able to communicate clearly, had good insight into his care needs and was able to use and weigh up the pros and cons of not having ongoing care. He was happy in the care home and knew he could not go home. Mr C took part in the review and agreed Mr D could not live on his own. He was pleased with the support Mr D was receiving at the care home. Mr C said he was applying for LPA and could not pay the invoices (totalling £19,000) until he got LPA for property and finance.
25. In August 2022 a mental capacity assessment concluded Mr D did not have the capacity to make decisions around his care.
26. In May 2023 Mr C had sought advice from a solicitor about Mr D’s finances and as part of this process they mentioned that Mr D might be eligible for FNC which may reduce the cost of his care.
27. In July 2023 the Council carried out a review of Mr D’s placement. It noted that Mr D was no longer able to retain, use or weigh up information around care decisions. Mr D’s advocate was present and Mr C took part. Mr D said he was being well looked after. Mr C said he now had LPA for property and finance.
28. The notes of the review included the following: ‘[Mr D] has been financially assessed as full cost and paying £850.92 per week excluding FNC which is paid by the NHS directly to [the home]’. It also confirmed that Mr D owed around £37,000 to the Council for the fees but that Mr C had been paying the most recent invoices.
29. Mr C complained to the Council in September 2023 about the lack of advice and information regarding the FNC, which he thought might be deductible from the fees. Mr C chased the Council at the end of October 2023 for a response and again at the end of November 2023. On 20 December 2023 he submitted his complaint again. On 22 December 2023 the Council apologised for the delay in dealing with the complaint and offered a telephone conversation to try and resolve the issue.
30. On 12 January 2024 the Council then promised a response but did not contact Mr C again. Mr C complained to us at the end of February 2024.
31. Mr D then died. The Council sent a reminder to Mr D at the care home for the outstanding £37,000. This letter was returned to the Council.
32. The Council responded to Mr C’s complaint on 13 May 2024. The Council referred to the email Mr C had sent on 11 May 2022 and agreed it had not replied to this but noted the question did not refer to FNC and the cost of the placement for Mr D was correct. It said it did not receive any other queries from Mr C regarding FNC until 3 July 2023 and the position was clarified at the review a few weeks later. It said there was insufficient evidence to conclude the Council had given Mr C incorrect information.
33. I started investigating Mr C’s complaint in July 2024. In response to my enquiries the Council accepts its delayed in responding to his complaint. It has offered to consider the complaint at stage two of the complaints procedure and has offered to pay Mr C £250.

Analysis

Funded Nursing Care

34. FNC is not the responsibility of the Council. It is paid for by the NHS directly to the home to cover the nursing component of the fees. It is a transaction between the home and the NHS. The Council informed Mr D of the correct weekly amount he was liable to pay for his care at the home from March 2022. Mr C did not query the amount being charged or raise the issue of FNC until a year later. The Council responded to his query promptly and explained that FNC was already in payment and would not result in a reduction in the fees.
35. I understand this was a surprise to Mr C and created uncertainty for him. But this was not due to incorrect information being provided by the Council. It was a result of information he received from a different source. I have not seen evidence that this information was key to whether Mr D should move to a different placement. I also note that Mr C did not have LPA for health and welfare so he could not make unilateral decisions about where Mr C should live.

Mental Capacity

36. I note that Mr D was deemed not to have capacity to make decisions about his long term care in January 2022. However, I have not seen evidence that the Council assessed his capacity in relation to giving information for the financial assessment. He declined to give any information. I do not think that the outcome would have been different given his financial situation, but the Council should have considered this issue as part of the process.
37. I also note that the Council sent all letters and invoices about the fees to Mr D at the care home. I appreciate that Mr C did not have LPA to deal with Mr D’s finances in 2022 but given his involvement with Mr D’s case the Council should have considered sending a copy to Mr C. However, given the email Mr C sent to the Council in 2022 and his contribution to the review in July 2022 where he noted the outstanding debt, he was clearly aware of the level of the fees, so I do not think he was caused injustice by this omission.

Complaint-handling

38. The Council has acknowledged it took far too long to respond to Mr C’s complaint and failed to communicate with him properly during this period. It should have responded within a maximum of four to seven weeks (low or moderate risk complaints), but it took eight months. There is no evidence it negotiated a timescale with Mr C or kept to any of the promised timescales in its correspondence. This was fault which caused Mr C avoidable time and trouble. I consider the Council’s offer of £250 is a reasonable way of putting this right and is in line with our guidance on symbolic payments.

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Agreed action

39. In recognition of the unacceptable delay in responding to Mr B’s complaint we recommended that the Council, within three months of the date of my final decision:
• Reviews its adult social care complaints procedure and take steps to ensure complaint responses are sent within the Council’s timescales. The Council should also ensure it has system in place to monitor complaints to identify if delays are likely to occur, to enable it to take action to minimise the delays and provide regular and meaningful updates to the complainant.
40. The Council has agreed to the recommendation and should provide evidence it has complied with the above actions.

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Final decision

41. I have completed my investigation as I consider the Council’s offer is a fair and proportionate way of resolving the complaint and the agreement to review its social care complaint procedure will hopefully prevent delays occurring in the future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman