Decision date: 31/10/19
Mr X complained to the Council on behalf of his father, Mr F.
Mr F had been living independently until he started moving between his adult family’s houses in June 2017. His health began to deteriorate and he was admitted to hospital in October after falling three times in one day. The family then told the Council that Mr F was not safe on his own and that they could not look after him any longer.
The Council completed a ‘proportionate assessment’ (not a full needs assessment) for Mr F in hospital on 21 November which was intended to facilitate a safe and timely discharge.
On the same day, Mr X attended a case conference where hospital staff confirmed that Mr F was medically stable and healthy enough to be discharged.
Records show that on this day the Council also met with Mr X and told him that Mr F would have to fund his own care if he had capital over the upper limit of £23,250, which he did.
The family favoured moving Mr F into residential care and hoped to secure CHC funding for him. The Council said that 24 hour care was a last resort and that it would consider less restrictive options first. It recommended a ‘transitional bed’ which could be free for four weeks and would allow for further assessments.
[Comment: this may have been an interim ‘discharge to assess’ bed, (NHS funded) or a reablement placement – (council funded) but one simply cannot tell from the report]
The Council found one potential transitional bed placement for Mr F in November but it said that it could not meet his needs. A second care transitional bed in another home was identified and it assessed Mr F in hospital at the Council’s instigation and offered him a place in December. However, Mr X did not believe that the care home fully understood his father’s needs and he declined that offer.
The Council said that no other placements were currently available in its area and that as it had already provided an option for a transitional bed, Mr F would have to be self funded if he were to go to another care home.
[Comment: this was the case anyway if he had an EPA but this doesn’t seem to have been appreciated by the LGO or the council?]
Mr X consulted a lawyer who secured an NHS CHC Decision Support Tool (DST) meeting to be completed in hospital, to decide if Mr F was eligible for CHC funding. The Council said that it did see the point in looking any further for placements whilst it was waiting for the DST meeting expected within days.
Shortly after, Mr X arranged to move Mr F to a care home to avoid further delays by the Council and he accepted that Mr F would now be assessed for CHC within that care home.
The Council contacted Mr X, who said he acknowledged that Mr F would be self-funding if CHC was refused, as his capital had been found to be above the £23,250 limit.
The Council completed a mental capacity assessment a week after Mr F had moved to the care home. It decided that Mr F did not THEN have the capacity to make a decision about where he lived, and this meant as far as they were concerned that there was nobody with the right authority to sign the contract on behalf of Mr F. Although Mr X had an Enduring Power of Attorney (EPA), it had not been registered with the Court of Protection.
[Comment: that was perhaps an error on the part of the council, because EPAs have always been able to be utilised as the person is becoming incapacitated, not merely AFTER being registered. That was both their strength and their weakness).
Following the mental capacity assessment, the Council made two decisions that they called ‘best interests’ decisions (but which were really Care Act decisions, in our view):
- Mr F should remain in the care home until the EPA was registered
- The Council should fund the placement at the care home until the EPA was registered
The EPA was registered on January 8th, 2018.
The Council had failed to pay the care home fees for the period up to that point – between December and March 2018 (when Mr X paid off the debt).
By April 2018, Mr X contacted the Council and asked for a financial assessment as Mr F’s capital had reduced almost to under the threshold limit.
[Comment: it so happened that the home was out of Calderdale’s area, and Mr X had made the placement privately as Mr F’s statutory agent – but nothing turns on this in this report, because it was later accepted that its involvement back in December meant that it retained responsibility for the man. That acceptance is tantamount to having accepted that it was hopelessly wrong NOT to have assessed for incapacity at that earlier point, in our view.
A dispute ensued as the family were by then unwilling to pay the ‘top up’ charges, over and above the council’s standard rate, up to the contractual rate for that particular home, which were £60 a week.
The Council assessed Mr F’s needs in May and also carried out a further MCA assessment. The Council decided that Mr F should be in a care home and would not be safe returning home without a care package.
The MCA assessor set out the pros and cons of 3 different options for Mr F and advised that the burdens likely suffered by his return home heavily outweighed the benefits. The other two options were to stay in the care home he was currently in, or to move to a cheaper care home where a third party top up was not necessary. It was concluded by the council that moving to another care home would be in Mr F’s best interests as he had no recorded special needs that meant he ‘needed’ to stay in the current one.
However, neither the family nor the care home staff agreed that it would be in Mr F’s best interests to move to another care home and he was not moved at that point. The report says this:
“It is clear the Council considered the family should agree to pay a top-up, but the family’s position was that they were not legally required to do so. It was suggested the Council might ask for an independent best interests assessment and would carry out a further assessment itself. It does not appear these further assessments were carried out. In a telephone call a few days after the meeting Mr X told the Council that his father would not be moving. He said he couldn’t comment on the issue of top-up fees.”
The Council wrote to Mr X’s lawyer in August with details of local care homes that were regarded as suitable and which would not require a top up payment.
The Council finally completed the financial assessment in November 2018 and decided that it would fund Mr F’s care and backdate that at the rate that would have been due up to June 2018 less legitimate charges, for reasons which are not clear.
The Council reported Mr X to the Court of Protection saying he was not acting in his father’s best interests. The Court of Protection made enquiries but did not take any further action
[Comment: completely unsurprisingly in our view, because the COUNCIL was responsible at this point, and its own standard rate was either one that was unlawfully and unrealistically low, OR it needed to bite the bullet and MOVE Mr F, with a DoLS in place. Mr X could not be MADE to pay a top up just because someone else responsible for Mr F, now, because he was under threshold, thought it would be in his best interests to go to a nicer home!]
However, in January 2019, Mr X was told by the Council that it would be taking legal action to recover ‘outstanding fees’ unless he and the family paid the care home a top up or Mr F moved somewhere cheaper.
Mr F sadly died in May 2019 after a short illness. The unpaid care home top up fees supposedly due from the man’s estate totalled over £3,000 – the basic costs having been paid back to June.
What was found:
The Ombudsman found the Council at fault for not undertaking a full needs assessment or a mental capacity assessment when it was obvious one was required. Mr F was described as having some cognitive impairment but no dementia diagnosis at that time.
The LGO observed that the Council spoke in terms of the having considered the least restrictive option, which is the language used where a person does not have capacity to make their own decisions, but the council did not carry out a mental capacity assessment.
Comment: it is also the language of the Care Act wellbeing section, regardless of incapacity, it must be noted.
What the LGO said was that this meant that it did not have the enough information for proper care planning to consider a long-term placement for Mr F.
However, the LGO reasoned that since the family had the right to make its own choices about Mr F’s care (as he was paying for it himself at this stage) (and an EPA comes into effect BEFORE registration, unlike an LPA), So this fault did not amount to injustice. The family’s supporting him to leave hospital or taking him out of hospital was not seen as abusive of his interests. In the early stages, Mr F was not regarded by anyone as NOT having capacity.
The Council was found at fault for the lack of clarity in setting out what it had agreed about the fees in the best interests decision but the LGO inferred (from the fact that councils are not generally allowed to pay for a person’s care when their capital assets are over the threshold) that the intention was to recover the money. The lawyer’s record of the meeting on 14 December 2017 suggests the funds would be paid by the council as a loan.
The LGO’s analysis of this intention to recover the basic fees between December 2017 and June 2018 was the right one but for the wrong reason, in our view, in legal terms. The analysis should have been as follows: in our view: if the council was thinking that despite having an EPA the man was going to need a placement, then it was liable to fund and contract on the basis of its perception that the man was incapacitated and had nobody in place to make the arrangement (and although that decision was legally illiterate), the council would have lawfully charged full cost for a person above or near to the threshold. If the council was of the view that the man had capacity and did not actively need his EPA to make the arrangements, it should not have felt the need to make the placement and therefore would have just been loaning the money, and wanting it back.
The Ombudsman found no fault in the Council taking some time to consider whether or not it was the right council to be responsible for undertaking the financial assessment – which we think is right because there was no clarity as to his incapacity in December when he moved. And although it then took over 6 months to complete, the Council did agree to backdate its funding responsibility to June 2018.
It was also not fault for the Council to consider alternative care homes in the wake of Mr F’s needs assessment. However, there was no evidence that the Council took into consideration the impact that moving care homes would have on Mr F. This was fault as the Council would have had to pay the full amount had it considered Mr F unable to move to another care home.
There was little progress made from then until Mr F’s death, as the Council proceeded as if he were able to move but did not move him, whilst the family did not agree either that he should be made to, or that they should have to pay the top up fees to ensure that he wasn’t obliged to.
The Council was at fault for failing to take more proactive steps to resolve the problem, but it was not deemed to have caused any injustice regarding the top up, as Mr F was not OBVIOUSLY UNable to be moved from the care home. The LGO said this:
“I cannot say the Council should have paid the top-up fees. On balance, I consider the Council would have said that Mr F could move to an alternative home because:
- there were no special needs that only the current care home could meet;
- Mr F had only been there a few months;
- before going to the care home, Mr F had been coping with moving between his children’s houses; and
- there is nothing in the records to suggest any reason he should not move apart from the fact he was settled in the care home.”
The Council agreed that within month it would apologise to Mr X for its various failings and pay £1,000 of the outstanding top-up care home fees, which is the maximum amount payable under the LGO’s remedies guidance for situations of uncertainty.
Within three months it would also need to amend its literature so it is in line with the Care Act 2014 and remind relevant staff of the need to consider all aspects of a best interest decision and clearly record how it has considered them.
Points for the public, service users, families, financial assessment officers and social workers
It was not clear from the records why the Council did not carry out a full assessment of Mr F’s CARE ACT needs whilst he was in hospital. It is clearly set out in the Guidance that finance officers or assessment officers need to consider the person’s mental capacity from the earliest possible stage, not the least because disclosure of a person’s assets needs to be properly asked for if the person lacks capacity. Sharing someone else’s private information is not the prerogative of their relatives, unless formally authorised…. And that is how it can come about that a council needs to take steps to obtain deputyship, if nobody else wants to.
If he was simply being treated as a self-funder, and not ‘needing’ an assessment, that would be a sign of a very bad culture in place, because
- One’s money is no bar to the right to be assessed, however much of it one might have;
- And if one is lacking in capacity to make arrangements to meet one’s own needs, and has nobody with lawful authority so to do, and nobody willing to just ‘do it’ in their own name, then the council must meet need, even in a care home, however wealthy one is.
Therefore, an exploration of incapacity, if there is any possibility that that might be the situation on the specific issue of making arrangements for oneself, is unavoidably necessary.
In this case, since an Enduring Power of Attorney IS and WAS able to be used from day one of its having been granted, unlike and LPA, it may have been the picture in hospital that this gentleman was not just well off but also ‘sorted’ for a lawful representative to make the arrangement and that the son AGREED to less than full Care Act assessment. One simply can’t tell.
In the context of a difficult hospital discharge, the absence of an MCA consideration is all the more astonishing because if he had attempted to leave of his own accord, or his family had taken him, that would have either been his taking a best interests decision for himself with capacity, or his family supporting him to make his own choice, OR his putting himself at risk without capacity, or his family simply taking charge on the basis that they knew best, which it would (or at least COULD) have been negligent to permit, if he lacked capacity.
Any discharge co-ordinator or ward manager should know that much about the MCA framework, let alone a local authority social worker who’s read the Guidance.
The Guidance makes it clear that the first thing a social work assessment should consider is whether a person has capacity to consent to arrangements for their care or make arrangements. That is because if not, the council is OBLIGATED to make arrangements for eligible unmet needs, UNLESS the person has someone else either authorised to make arrangements for that person, and WILLING to do so, or merely willing (implicitly, in their own name, rather than ON BEHALF of the needy person, but worded so as to cover people doing so without authority but with access to a bank account in the person’s own name, even if not strictly legitimately, we think). EPAs, LPAs, Appointees and Deputies would be the very people disclosing the person’s financial situation, without which it could not be decided whether the person was below or above threshold, and whether therefore the person should be regarded as a full cost payer whose needs are being met by the council by dint of the person’s incapacity, OR as a self-funder through the auspices of the helpful other person.
If a person has chosen a home in which care has been paid for privately, whether in the hope of getting CHC or not, that does not mean that that choice counts as a choice for Choice of Accommodation and Top up purposes even a few weeks later when that person has depleted under the threshold. That is why the council must assess every such person and not assume that the person CAN move: it might not be defensibly therapeutically, appropriate in terms of social work evaluation. Here the LGO makes a guess that on the balance of probabilities, it would not have been inappropriate.
To decide that, the council has to weight up best interests pros and cons, including the impact of moving, and they have to conscientiously weigh up all relevant considerations including familiarity with the environment, the human right to respect for the person’s home (so the longer they’ve been there, the harder it is to move them), the relatives’ input as people interested in an incapacitated person’s wellbeing, consideration of the visitors’ wellbeing, and respect for the needy person’s private life (ie their relationships at that home).
If the assessor’s view is that the person cannot be expected reasonably to move, either because there is no other SUCH suitable place, or there is no defensibly suitable other place below the council’s cost ceiling (even assuming that that is a validly arrived at ceiling, and not a fantasy rate based on simply announcing a rate that no home accepts from the council) then the council has no option but to pay for the full rate and keep the person there. Any council that just hands relatives a list of care homes that take council clients at a fee below the ceiling rate is not discharging Choice of Accommodation functions lawfully.
This report paints a classic picture of a ‘toxic top ups’ culture, we have to say.
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The full Local Government Ombudsman report on the actions of Calderdale Metropolitan Borough Council can be found here: