Ombudsman’s decision date: 20 Jun 2019
What happened:
The complaint was brought by Mr X on behalf of his father Mr A, who had dementia. Mr X, along with his brother, had a Lasting Power of Attorney (POA) over Mr A’s health and welfare (not finance, from what one can tell from the report.)
In August 2017 Mr A was admitted to hospital following a fall at home. Mr A had fractured his neck. He stayed in hospital throughout August.
During this stay, Mr X and the wider family decided they could not manage caring for Mr A at home, any longer.
After an assessment, a social worker decided that Mr A lacked capacity to make his own decisions about his care, that he was unable to safely care for himself at home and it was in his best interests to move him into a care home.
It was recommended that Mr A be moved to a care home after his discharge from hospital. Mr X agreed with those recommendations.
The social worker then sent the assessment to the Council’s adult care brokerage service to find Mr A a place in a suitable home.
On 6th September 2017, the social worker met with Mr X and told him the brokerage service had found Mr A two possible care homes which had vacancies. Mr X told the social worker he wanted to discuss Mr A’s financial assessment with his brother, before they signed any agreement.
On the 7th September, records showed that hospital staff simply called Mr X and informed him they were in the process of discharging Mr A to a care home. Mr X said the hospital staff were vague about the details but said they would call the family back later, which did not happen.
The hospital discharged Mr A to the care home that evening. Neither the hospital nor anybody from the Council contacted Mr X to inform him of Mr A’s discharge.
The day after, Mr X asked the social worker why he was not informed Mr A’s discharge, and why the Council did not involve him or his brother in the decision about which care home Mr A should go to. He asked who had decided the care home would meet Mr A’s needs adequately – as that is part of the legal task before a care plan can be regarded as finalised.
The Council apologised to Mr X for the miscommunication regarding Mr A’s discharge. It said someone should have contacted Mr X when the care home had assessed Mr A and agreed to offer him the placement.
The social worker said they would review Mr A’s needs again within 6 weeks, but said that if Mr X had any concerns about the care home, he could raise them with the social worker, who would then be able to carry out an earlier review.
The social worker reviewed Mr A on 23 November 2017 and said the care home was meeting his needs and keeping him safe. They recommended he should stay at the care home. The review records showed Mr X was happy with the care provided to Mr A by the care home. At that point only it appears that the social worker informed Mr X of the care home fees and carried out a financial assessment which showed Mr A would need to pay for his own care
Mr X then complained to the Council. He complained that the Council discharged Mr A from hospital to the care home without consulting him or the wider family. He said Mr A arrived at the care home wearing just his hospital gown and was disorientated and distressed, and Mr X did not know his whereabouts for nearly 24 hours.
Mr X also disputed responsibility for the care home fees between 7 September (when Mr A arrived at the care home) and 23 November. He said the Council did not consult with him about the care home or the fees prior to 23 November, and therefore said neither he, nor Mr A were liable to pay for that period.
The Council responded to Mr X and apologised that it did not inform him about Mr A’s discharge to the care home. They were unsure why neither the brokerage team nor the social worker informed Mr X, but accepted that someone should have done. They said they would put plans in place to make it clear who was responsible for communicating with families in similar circumstances in future.
Mr X was unhappy with the Council’s response. He said the Council had not addressed his concerns about Mr A’s discharge and had not addressed his dispute around the care fees.
The Council wrote to Mr X and apologised again about Mr A’s discharge. The Council agreed it should not have happened and it was an unacceptable error. The Council said though that Mr X was aware of the financial implications of Mr A moving to a care home. The Council however agreed to waive the first week’s charges due to its errors and poor service around Mr A’s discharge.
Mr X remained unhappy and complained to the Ombudsman.
What was found
As Mr X and his brother had POA over Mr A’s health and welfare, the Council was at fault for failing to communicate with them after the hospital discharged Mr A. The fault caused both Mr A and Mr X distress, upset and uncertainty.
The LGO found that although Mr X had discussed Mr A’s discharge to a care home with the Council, there was no formal agreement in place about which care home it would be. The Council should have fully consulted with and sought Mr X’s agreement about the choice of Mr A’s care home, It should also have made Mr X aware of the cost implications of the care home. It did not, which also amounted to fault.
The Council said its brokerage team should have communicated directly with Mr X about Mr A’s discharge and choice of care home following a process change in August 2017. The Council accepted it was at fault and had already apologised to Mr X for the communication oversight. The Council had already updated its internal guidance and reminded the brokerage team of its communication responsibilities.
Despite the Council being at fault for not discussing the care home and its fees with Mr X,
records showed that Mr X was aware Mr A would be charged (at least something) for residential care. (NB there is no indication as to WHEN his full cost paying status was first discussed; it may have been volunteered by the family – see below for why this matters in legal terms.)
The LGO found that there was no delay by the Council in reviewing Mr A’s case; Mr A’s review took place on 23 November which Mr X and the wider family agreed to as a convenient date and the Council made it clear to Mr X that he was entitled to ask for an earlier review if necessary.
The LGO found no fault from the Council in not waiving the full six weeks of care home fees. Following the review Mr A stayed at the care home on a permanent basis. The review records showed Mr X was happy with the care provided to Mr A and raised no concerns prior to the first review. Despite the Council being at fault for not discussing the fees with Mr X, the records show there was no ongoing injustice to Mr A after he arrived at the care home because he was well cared for.
The Council waived the first week’s care home fees of £750 in recognition of the distress and uncertainty caused to Mr A by its poor communication around discharge. However, the LGO considered that as a remedy for the injustice to Mr A, not Mr X. Therefore the LGO recommended a further remedy for the injustice caused to Mr X. The Council agreed to pay Mr X £100 in recognition of the distress and uncertainty caused by its poor communication around Mr A’s discharge from hospital to the care home.
Points for care homes, brokerage teams and social workers, and points for families
- When
a person has a power of attorney for someone, despite their
incapacity, the holder of the power of attorney counts as the
incapacitated person’s statutory agent.
- The
agent has power to make contracts, pay bills, and disclose financial
information, because that person stands in the very shoes of the
person lacking capacity – that’s what statutory agency IS.
- However,
if a person’s attorney signs them into a care home as a self
funder, the person in the care home is the principal, (ie the actual
contractor through the agency of the attorney) and the law in this
country is that the principal is liable for the fees, not the agent.
The principal would be the one who would have to be sued by the
care home if the attorney did not hand the fees over, and that
principal would need a litigation friend to be appointed because of
course they would not be able to conduct their own defence.
- If
a person clearly
lacks capacity to make a contract, the fact that their relative
withOUT a power of attorney has signed them into the home, does not
make the person receiving the care into a contractor
who owes anybody any money. You have to have capacity to be a
contractor. The care home admissions officer must therefore be very
careful to be sure of the status of the signatory. It may be that if
no representative authority has been lawfully registered, the
client’s son or daughter who has signed, has signed in their own
name, and is the one who must be sued!!
- If
a person appears
to have capacity and signs him or herself in, then the care home
need not worry that the contract will be avoided later, if they had
no obvious doubts about capacity at the time. If they should
have spotted that it was likely, the contract might be voidable, but
the person will still owe a reasonable sum for the value of the
service they have been given, because of the doctrine of
necessaries.
- When
a person lacks capacity at the point when they are in need of a care
home placement, and nobody else authorised formally to make
arrangements (make a contract) on their behalf, and nobody else
(like a friend, spouse, or other relative) independently willing to
do it in their own name, with their own money, for their loved one,
it does not matter how rich they are: they
are entitled to be placed under a local authority contract
under s18 of the Care Act; the family should not be told to go off
and “self fund” even if they voluntarily disclose that the
person has above threshold assets – and the care home client will be
a full cost payer if they DO happen to be wealthy enough to have
above threshold assets, once that’s been ascertained.
- That
contract remains in place unless or until terminated by the council,
so even if the financial assessment is later completed, it’s no
good a council just telling the care home to send the bills to the
client on the footing that somehow suddenly they’ve taken the
contract over. The council needs to terminate, and have a good
reason for believing that the person has got someone else to do it
for them. If there is no good reason for believing that, the
client’s family cannot BE MADE to get deputyship, in order to be
made to take over the responsibility.
- If
a person with above threshold assets has an attorney who is WILLING
to make contractual arrangements for a person, the council is
entitled to rely on that willingness, and not make an emergency
council placement.
- In
this case, the council appears to have made the placement on the
basis of incapacity DESPITE there being a person with authority to
contract. That is not unusual, or unlawful; because it’s quite
common not to know the state of someone’s finances at a crisis
point, ie whether they are above or below threshold – and if
someone has less than the threshold, they should be able to access
the council’s price, rather than the private rate that care homes
charge. We just don’t know if Mr X and the brother knew
how much money their father had at that very moment – they weren’t
his finance attorneys.
- Given
Mr X was Mr A’s statutory welfare agent, shipping Mr A out of the
hospital without even consulting a welfare
attorney and without any
authorised person’s consent into a fee paying setting, (if the
assumption or information that the man was above threshold and would
be paying the whole fee, not just charges) the discharge was hugely
improper, in legal terms).
- If
the finances were unclear, so that the council had
to contract, it was still wrong to touch Mr A without proper
consultation of a welfare attorney.
- In
terms of charging, however, it MAY be that the financial assessment
was only done at the point of review. Even so, there is nothing that
we know of to stop a council tracing back for a further period and
backdating the financial assessment to the point when it first began
to pay for care, if the person had the same or more money at that
earlier point.
- It
is not clear in the Care Act legal framework whether a council would
be entitled to refuse to contract In the above case when there was a
PoA, if the PoA said no on the footing that the financial position
was unclear.
- So
since the council made the placement, but behaved really badly
regarding hospital discharge, it sensibly waived a week’s worth of
what would appear to have fairly been full
cost fees.
The full Local Government Ombudsman report of London Borough of Enfield Council’s actions can be found here
https://www.lgo.org.uk/decisions/adult-care-services/residential-care/18-007-704