Summary: Mrs X complained about the Council’s approach to her mother’s financial assessment. The Council accepts its social worker should not have conducted an interview with Mrs X’s mother (Mrs P) without Mrs X being involved. It has apologised for this, which I consider is sufficient remedy. We have not found other fault.

The complaint

1. Mrs X complains that the Council’s approach to Mrs P’s financial assessment caused her an injustice. She says it:
1. Lost her original paperwork
2. Contacted Mrs P, who does not have capacity, three times, twice without Mrs X’s knowledge
3. Incorrectly advised Mrs X not to pay Mrs P’s residential fees while the assessment was being arranged
4. Caused Mrs P distress by suggesting she might have to move to a different residential home
5. Failed to advise Mrs X about a fee disregard which would have paid for 12 weeks of care
6. Delayed her Deferred Payment Loan (DPL) assessment for seven months, meaning the set-up fees had increased by the time it was finally arranged.
2. Mrs X says the above issues caused her and Mrs P an injustice as they were both distressed by the Council’s approach.

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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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or

• the injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended)

4. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Principles of Good Administrative Practice during COVID-19”.
5. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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. I spoke with the complainant and reviewed her complaint file.
9. I made enquiries with the Council and researched relevant law and guidance.
10. Mrs 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

COVID – 19

11. We expect that during the period of the pandemic, organisations like councils that were significantly involved in responding to COVID – 19 should have continued to keep basic records of key decisions including when they departed from normal practice. They should have ensured that frontline staff understood any new or adapted policies and made clear evidence-based decisions, explaining the circumstances of those decisions.
12. Councils should ordinarily comply with the Care Act 2014 (“the Act”) and Care and Support Statutory Guidance, (“the Guidance”). The Guidance says that when a person needs an assessment, councils must give as much information as possible about the assessment process wherever practicable. It says that in some cases assessments may be carried out over the phone or online but councils need to consider the risk of such approaches.
13. The Guidance also says that if an adult might lack capacity, an assessment must be carried out face to face.
14. However, during the pandemic some amendments were made to the Care Act in March 2020. These allowed councils to lawfully prioritise whose and what needs would be met. These were called Care Act easements. Councils should only use easements where they decide it is essential. For example, where the workforce was significantly depleted and/or demand on social care increased to the extent that it was no longer reasonably practicable to comply with Care Act duties.
15. There are four stages to implementing the Care Act easements. Stage one is where a council continues to operate as usual. Stage two is where councils applied flexibilities. For instance, online consultations rather than face to face. These decisions should be well-documented and the decision to go to stage two should be made by the Director of similar senior officer.
16. It is not until councils might need to go to stage three that the Government had to be informed and so this would not be recorded as using the easements.

The Council’s policy on when and how to undertake face to face visits during Covid - 19

17. In May 2020 the Council published a policy which set out that face to face visits should be kept to a minimum. It said they should only be undertaken when essential and it wasn’t possible to complete an intervention remotely.

Care home fees, NHS-funded nursing care and payment

18. Once an assessed person moves permanently into residential care, their former home can be counted as capital in a charging assessment. However, the value of the former home is disregarded for 12 weeks from the date on which the decision is made to enter residential care permanently. (The Care and Support (Deferred payment) Regulations, 2014.), SI 2014/2671, Schedule 2, para 2)
19. Some people can enter into a deferred payment agreement with a council. This option must be made available to those who have capital which is below the upper capital limit or who are unable to meet the full cost of their care. The council pays a person’s residential fees in exchange for registering a charge on the former home. The Council recovers the fees when the home is sold.
20. NHS-funded Nursing Care is the funding provided by the NHS to care homes with nursing to support the provision of nursing care by a registered nurse. Since 2007 NHS-funded Nursing Care has been based on a single band rate. In all cases individuals should be considered for eligibility for NHS Continuing Healthcare before a decision is reached about the need for NHS-funded Nursing Care.

Background

21. Below is a chronology of events. It is not meant to be an account of everything that happened but only those facts that are of relevance to this investigation.
22. In June 2019 Mrs X placed her mother, Mrs P, in a residential nursing home, (“the Home”). Mrs P funded her own care at that point. Mrs P has dementia. At the front screen of the records the Council holds for Mrs P, it says that Mrs X is the first point of contact for all communication with Mrs P. This includes letter, telephone and visits to Mrs P.
23. In February 2020 Mrs X became concerned that Mrs P’s savings had reduced and approached the threshold whereby she could ask the Council for help to pay her residential fees.

Lost documents

24. Mrs X sent the relevant documentation to the Council. Initially, Mrs X had to resend some documents because they did not reach the Council file. The Council apologised for any inconvenience.
25. Later, it transpired that the Council had received the documents. However, they had not all been scanned onto the Council’s systems. The officer dealing with Mrs X’s application had been working from home due to the COVID 19 pandemic and did not know the documents had been received in the Council office. Mrs X was informed what happened to the documents in May 2020. She thanked the Council and said it was a relief to know her documents had not been lost.

Provisional financial assessment

26. By the end of March 2020, the Council had completed a provisional financial assessment and steps were being undertaken to arrange a deferred payment agreement. The Council asked Mrs X to provide some further documentation.
27. The records show that, in May 2020 officers checked if the further documentation had been supplied by Mrs X. The officer dealing with the case said he had not received the necessary completed form and so had suspended the funding calculation.

Initial contact with social worker

28. There was a delay in allocating a social worker to Mrs P’s case to complete the assessment. The Council said this was due to the pressure of the COVID 19 pandemic. It says it had to prioritise its safeguarding referrals and at the time there were no concerns about Mrs P’s safety because her needs were being met by the Home. It has apologised for any distress the delay caused Mrs P or Mrs X.
29. On 6 May 2020 a social worker, Ms D, contacted Mrs X to provide information about the financial assessment and to let her know it would start on 18 May. Mrs X says Ms D told her not to pay Mrs P’s fees while the application for a deferred application was being processed.
30. The Council denies this. It points to the records, which show that on the same date, Ms D spoke to a Council finance officer, who advised Ms D that Mrs X would continue to make payments to the Home until a decision had been made about funding Mrs P’s care.
31. Ms D’s records of the conversation with Mrs X say she informed Mrs X she would continue to pay until the funding decision was settled.

Query over eligibility for nursing care funding

32. In June 2020 Ms D’s manager told Ms D to assess whether Mrs P was still eligible for funded nursing care. The Council said that as Mrs P’s mobility had improved since she had moved to the home and no longer needed two carers to support her, it was necessary to establish if she was still eligible for that level of funding.
33. A checklist was completed by the Home in June 2020 which confirmed that Mrs P was still eligible but it appears Ms D had some concerns about whether this document was still up to date.
34. On 2 July 2020, Ms D called Mrs P at the Home to begin an assessment of Mrs P’s mental capacity. Mrs X was very upset that this happened without her being involved. She said Ms D should not have contacted her mother as it is clear on Mrs P’s file that all contact should go through Mrs X. She said Mrs P was very upset by the call.
35. Ms D says she recalled saying to Mrs X that Mrs P might have to move as her needs had changed. But it was later concluded that this would not be necessary. The Council says Ms D was only alerting Mrs X to the possibility. She also did this in writing on 8 July 2020.
36. Ms D regularly contacted the Home to ask for an updated checklist. It was provided on 27 July 2020 and confirmed that Mrs P still needed nursing funding, although it was reported that it was ‘borderline’.

Contact with Mrs P without Mrs X being present

37. On 16 July 2020 Ms D started Mrs P’s mental health assessment over the phone. Mrs X was concerned that this call happened without her being present. She also said that her mother was upset because Ms D suggested to Mrs P that she might have to sell her home.
38. Ms D reports the conversation differently. She said she asked Mrs P if she owned her own home, not that she might have to sell it. She said she asked questions like that to determine if Mrs P was able to retain and understand information relevant to the decision that was being made in relation to her long-term accommodation.
39. Mrs X says she was told by the Home that the phone call ended because Mrs P was so distressed. Ms D says the call was not ended for that reason but because Mrs P could not hear. Her notes record that Mrs P was supported by a care worker, who told her that Mrs P’s levels of confusion were always heightened in the afternoon. It was therefore decided to try again the following morning.
40. Ms D acknowledges that she should have contacted Mrs X to inform her she was carrying out the mental capacity assessment.
41. She says she contacted her the next day and the assessment was then concluded with Mrs X being involved. Mrs X said the only reason she was involved in the assessment the following day was because she had contacted the Home to arrange a visit and was told Ms D was going to be calling her mother that day again.
42. Mrs X complained through her MP. Initially she had complained about the length of time the financial arrangements were taking. Now she added to her complaint, sharing her concerns about Ms D’s calls to her mother without involving Mrs X.
43. The Council responded on 10 August 2020. It said, among other things, that:

• Mrs X had been difficult to contact because her mobile phone blocks private numbers.
• The delay in setting up the deferred payment agreement was as a result of Mrs X not having returned the relevant forms.

44. I have reviewed the records. They show, among other things, that:

• Ms D had difficulty contacting Mrs X in April 2020. The records report that on 5 May 2020, Mrs X said she would unblock her phone so that contact could be made.
• Mrs X was asked to produce some further documentation in March 2020 and provided the relevant forms by 10 July 2020.

45. Mrs X was concerned about the Council’s responses to her complaint through her MP. She considered that some information was wrong and her complaint points were not all answered sufficiently. She was concerned, for instance, that the Council said she had not returned all the relevant forms, when she had returned everything she was aware she had to return on 10 July 2020.
46. The Council accepted in later correspondence that she had done so but it had not informed her that confirmation of her power of attorney was also needed. This delayed the process somewhat because it was, at first, difficult to confirm that Mrs X did indeed have power of attorney for Mrs P. The Council accepted that the funding of Mrs P’s placement “…could have been handled far better than it was.”

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Analysis

47. I will address each of Mrs X’s complaint points in turn below:

• Lost original paperwork

48. It transpired that the Council had not lost Mrs X’s paperwork, although she was not informed of this for a few months. The Council apologised. In any event, if Mrs X has any continued concerns about how her information was processed, as set out in my paragraph five above, we usually consider it reasonable to expect the person to refer the matter to the Information Commissioner.

• Contacted Mrs P, who does not have capacity, three times, twice without Mrs X’s knowledge.

49. The records show that Ms D contacted Mrs X at least twice without Mrs P’s involvement. This is fault and it caused distress. However, the Council has apologised for this and I am satisfied that it has recognised this was the wrong approach. It is also relevant that Mrs X was not on her own during this conversation but supported by a member of staff from the Home. Therefore, I do not consider I need to make further recommendations.
50. I note also that in usual circumstances, as there was a question about Mrs P’s capacity, the Statutory Guidance says that assessments should be carried out on a face-to-face basis. However, in this case, the Council was not at fault in following its COVID policy not to undertake face to face consultations.

• Incorrectly advised Mrs X not to pay Mrs P’s residential fees while the assessment was being arranged.

51. I have looked at the records on file. On balance they show that Ms D was aware that Mrs X would have to continue to pay Mrs X’s fees while the DPA was being set up. It would therefore not make sense for her to tell Mrs X the opposite. It is more likely that there was some misunderstanding. There is no evidence of fault.

• Caused Mrs P distress by suggesting she might have to move to a different residential home.

52. It is clear that a discussion about this being a possibility was raised with Mrs X. I cannot say what was said to Mrs P directly. This is partly because Mrs X was not present during the conversation when Ms D was alleged to have given this impression. Ms D says she asked Mrs P about her home. But in doing so, Mrs X believes Mrs P understood she might have to sell her home. It is difficult to say, and perhaps if Mrs X had been involved in the conversation, she could have guided the conversation more to ensure her mother was not unsettled by questions she might have found distressing. It was unfortunate that Ms D made that initial error in failing to invite Mrs X to attend the conversation, but as I have said above, I consider the Council’s apology is sufficient remedy.
53. With regards to the issue over nursing care funding, I note that when Mrs P was assessed by the Home, it was decided that she continued to need nursing care funding. However, the decision was reported as being ‘borderline’ and therefore it does not seem unreasonable for Ms D to have checked that she still was entitled to the higher level of funding. She was also acting correctly in making sure Mrs X understood that may have been a possibility.

• Failed to advise Mrs X about a fee disregard which would have paid for 12 weeks of care

54. I am satisfied with the Council’s response in this regard. On 8 July 2020 Miss D informed Mrs X that her mother would not be entitled to a 12-week property disregard. She informed her this was because she had been in a care home as a permanent resident self-funding her placement for more than 13 weeks. The Council is not at fault.

• Delayed her Deferred Payment Loan (DPL) assessment for seven months, meaning the set-up fees had increased by the time it was finally arranged.

55. There were delays in setting up the DPL. The Council accepts it could have handled the processing of the loan better. The Council backdated any payments to the date when Mrs X became entitled to apply for funding. It has apologised. I do not consider I need to make any recommendations.
56. Further, I do not consider the Council delayed at the outset. Mrs X had to resend the relevant forms but that did not delay the process. I consider an apology is sufficient remedy for that inconvenience and the Council has already apologised.
57. After Mrs X sent the forms in July 2020, the records show the Council tried to process the arrangement in a timely way. However, it encountered difficulties such as evidencing Mrs X's power of attorney. I do not consider this delay caused Mrs X a significant injustice.
58. With regards to the set-up fees, the records show Mrs X was told she would have to pay an administration charge of £2942. This was the deferred payment fee for 2020-2021. However, the Council has since provided records that show she was only charged £2840 administration fees, which was the fee for 2019-2020. While this may have been a little confusing for Mrs X I do not consider that she was caused a significant injustice as she was not charged the higher fee.

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Final decision

59. The Council was at fault but this has already been sufficiently remedied. I have not found other fault. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman