Date of decision: 14 September 2025
Summary
An individual, Ms Z, complained on behalf of her sister, Mrs X, that the Council excluded them all from a care needs assessment and failed to provide timely and clear details of care charges for four months. The lack of involvement and poor communication caused significant distress and uncertainty about care affordability, but the Council offered a financial remedy, service improvements and a repayment plan.
What happened
After a period in hospital, Mrs X was discharged to a residential care home on 29 December 2023, initially funded for two weeks by the hospital/NHS.
The Council then assumed responsibility for ongoing care.
On 25 January 2024, the Council reviewed the placement but did not involve Mrs X or her family, despite her incapacity and delirium at the time. There was no explanation for failing to consult Mrs X’s family. On 27 February, the Council sent a copy of the review/reassessment to her relative.
Mrs X left the care home on 8 March and returned home with a new care package in place. A further assessment occurred on 4 April, with her full participation. Meanwhile, her family carer spoke by phone with the Council on 3 April regarding when charges would apply, for periods since discharge but there was no evidence that the actual costs for each period were discussed. On 24 April, the Council informed her about weekly charges dating back to 13 January, with significant arrears accrued for both care home and home care valued above £5200.
Mrs X requested reassessment in July, and services ended in September. A formal complaint to the Council was made in June.
On 30 July, the Council admitted failing to involve Mrs X’s family in the January process and not discussing domiciliary care costs before her discharge home. It apologised and offered to waive charges for one period valued at £1,012.11.
Mrs X challenged the amount owed, and the Council referred her to an independent advocate for support.
What was found
The Council breached statutory Care Act guidance (the Care and Support Statutory Guidance) by not involving Mrs X‘s family in the initial care needs assessment and delaying the financial assessment for months after care commenced, leading to over £5,000 in charges unknown about by Mrs X. The failure to provide early cost information and involve advocates prevented informed decision-making and caused distress.
The financial assessment itself was accurate and complied with required considerations, which was not challenged by Mrs X.
To remedy the injustice, the Council reduced arrears by £1,012.11 and offered a payment plan. No extra compensation was recommended, as care was actually received. The Ombudsman found fault, and the Council agreed to service improvements and better staff training on timely financial assessments.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The Ombudsman was right to find fault both in the Council’s failure to involve Mrs X’s family during the needs assessment of an incapacitated individual, and in the delayed provision of financial information. However, in our view, the report could have explored in more detail the extent of Council duties, including those triggered by a lack of capacity, even if it was temporary.
The statutory Guidance provides that an assessment must be person-centred, involving the individual and any carer the adult has, or any other person they may want to be involved.
If an individual is unable to request an assessment or struggles to express their needs, the local authority must in these situations appoint an independent advocate under s67 (in the absence of a willing, appropriate informal supporter of the person’s participation, to whom their consent has been given for undertaking that role) to help the person to be involved as much as possible, and explore whether there is a deputy or attorney with legal authority for information sharing about assets, or otherwise formalise its position on any other aspects of issue-specific capacity affecting the council’s functions under the Care Act.
The report sets out that at the point of discharge from hospital Mrs X was unwell and did not have capacity to make decisions about her care. Mrs X was still unwell and had delirium when the Council reviewed her placement on 25 January. This raises a question as to whether she was being deprived of her liberty at the care home, and whether an urgent or standard authorisation ought to have been in place.
If Mrs X was not deprived of her liberty, but lacked capacity, the advocacy and best interests decision-making process still ought to have been followed, including a best interests meeting involving her family. The report does not refer to these points in terms of MCA obligations at all.
If Mrs X lacked capacity to make decisions about her finances, the relevant part of the statutory Guidance ought to have been followed:
‘Where a person lacks capacity, they may still be assessed as being able to contribute towards the cost of their care. However, a local authority must put in place policies regarding how they communicate, how they carry out financial assessments and how they collect any debts that take into consideration the capacity of the person as well as any illness or condition. Local authorities are expected to use their social work skills both to communicate with people and also to design a system that works with, and for, very vulnerable people. Sometimes it is useful to consult with and engage with family members; however, family members may not have the legal right to access the person’s bank accounts. Where possible, local authorities should work with someone who has the legal authority to make financial decisions on behalf of a person who lacks capacity. If there is no such person, then an approach to the Court of Protection is required.’
If Mrs X was being charged for a period when she lacked capacity and if there was no one who had legal authority to make financial decisions on her behalf then an approach ought to have been made to the Court of Protection (to appoint a deputy).
Since that did not seem to have happened it appears to us that it was not possible to value her assets so as to charge Mrs X for the period during which she lacked capacity. She could not have been regarded as refusing or not co-operating with financial assessment, thus justifying full cost charging. The LGSCO report does not grapple with this issue at all.
Even if it was not possible for the Council to have completed a financial assessment sooner, it should still have been able to give general information about the likelihood of needing to make a contribution, and an indication of the level of costs.
The Ombudsman noted and treated it as significant (regarding the extent of injustice sustained) that even after Mrs X was informed in April 2024 of the cost of domiciliary care she did not change the amount of care, implying that she was by then back to a capacitated mental state. (She did cancel care in September 2024 but the Ombudsman believed that by that time her needs had changed.)
We do not see sufficient information within the report for any conclusion to be properly reached from the fact that Mrs X did not change the amount of care in April 2024. It could be that, even if the charges were a financial burden to Mrs X, she really needed that level of care at that time. But it is also true to say that under the old law if one availed oneself of the services (regardless of one’s capacity, in fact), then the liability to pay was always triggered. And one could be retrospectively charged, as long as one knew that charges would be coming, or one’s assets had not been able to be found out about.
The Ombudsman could have gone further than merely recommend waiver of charges in the sum of £1012.11 already offered by the council, and a symbolic payment for distress, in our view, on that front.
Community care law is clear that, under the Care Act 2014 and public law principles, family members ought to be consulted in needs assessments where an individual’s capacity is in doubt, unless there is a valid reason not to. Section 9 and the assessment regulations assume that everyone grasps the likely interest in the person’s welfare on the part of the family!
The Council’s omission was more than poor practice. It risked rendering assessment unlawful, especially given wider statutory provisions requiring consultation of those interested in the person’s welfare before any touching, restriction of freedoms or deprivation of liberty can proceed as part of the Care Plan, and, where indicated, referral for an independent advocate.
A mere apology and a late offer to waive part of a bill arguably does not go far enough to make up for the Council’s omitted obligations if procedural rights were missed earlier.
In practice, councils are expected to have systems that confirm the existence of a deputy, attorney or family member to consult, and to escalate advocacy referrals promptly. Financial assessments must be explained clearly and in writing, and councils should consider the impact of delayed or unclear billing on the individual’s well-being, particularly in terms of anxiety, uncertainty, and the ability to make informed choices about care. Any waiver of charges should reflect not just service receipt but also the service user’s inability properly to participate in or plan for service commencement and payment.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s North Lincolnshire Council (24 016 958) report. If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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