Date of decision: 31 August 2025
Summary
A daughter complained that Wiltshire Council delayed moving her mother from a care home after she was assessed as not needing residential care, causing extra care costs because of the difference in the financial assessment rules.
What Happened
In October 2023, Ms X was admitted to hospital after hallucinations linked to infection and a pre‑existing mental health condition.
By January 2024, she was assessed as lacking capacity to decide about her care and finances. With no power of attorney or deputyship, a Best Interests decision determined she should move temporarily to a residential placement so that future care management could take place to determine whether she would like to remain in a residential placement or consider a less restrictive alternative such as Sheltered Housing or Extra Care Housing since she advised she would like to have her own flat. She was discharged to a care home in March 2024.
Although her daughter, Ms A, said the care home staff believed she had capacity to make decisions about her care and finances, the Ombudsman did not see any evidence that this was so. Ms A said this was intended to be a six week assessment stay free of charge, but Ms X never left. Ms X owned property and would have been a self‑funder under Care Act rules, but the Council funded care on an interim loan until deputyship was secured. Ms X regularly expressed views about where she wanted to be discharged, but these were often in conflict with the views of her family.
In May 2024, Ms A complained to the Council about the way it had withheld information about Ms X, made untrue allegations about the family bullying Ms X, been unclear about Ms X’s capacity and failed to assess her as requiring detention under the Mental Health Act which would have resulted in free care under s117 Mental Health Act.
The Council said it had not had consent to share Ms X’s information with her family. It said there was no fault in the way an AMHP (approved Mental Health Professional) had assessed Ms X, and therefore no reason to doubt their view that she should not be detained under the Mental Health Act. It said staff at the care home had witnessed family members trying to influence Ms X’s decision making. It confirmed that the Council did not have control over Ms X’s finances, but was paying for her care on an interim loan basis, which would need to be repaid.
A deputyship application by the Council stalled due to unavailable financial details and Ms A’s objection; once the objection was withdrawn, the application resumed.
At a Best Interests meeting in September, the Council noted Ms X’s care debt was rising and a return home might reduce costs but could harm her mental health. Remaining in the care home was only an option to Ms X as she was refusing to leave and was self-funding her placement. It was agreed she would remain in care until deputyship was finalised.
At a best interests meeting in December 2024 it was noted that Ms X no longer had needs which had to be met in a residential setting and could be discharged. The recommendation was that she had her needs met within the community with a small package of care for welfare checks. She continued to have paranoid delusions. It was emphasised that the repayment of the loan was not negotiable and if the family disputed it, they would become responsible for funding her care. The meeting noted that Ms X now expressed a consistent interest in moving to Wales to buy a new property. The Council said this could only occur after sale of her house and appointment of a deputy to manage funds and repay interim care costs. Although it was open to Ms X to return to her existing property, it was believed that this would be detrimental to her mental health.
Ms A complained to the Ombudsman that Ms X had been charged an unwarranted amount of money by the Council for a placement she had been forced into. She said it was clear from the middle of 2024 that Ms X was able to leave the home, but the Council had continued to ‘loan’ her the money to remain there. She was concerned that her mother’s wish to move to Wales and buy a property there was being jeopardised by the waste of her assets on a care home placement.
When Ms A complained to the Ombudsman, the deputyship process was still pending.
What Was Found
The Ombudsman found no fault. Ms X’s placement was lawful under Best Interests due process and the Council could not move or manage her finances without a deputy. Funding through an interim loan complied with Care Act charging rules. Delays stemmed from legal and capacity issues rather than Council error. No maladministration or injustice was found.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
This decision is not able to be regarded as sustainable, in our view, once one applies basic community care and mental capacity law.
When a person lacks capacity to make care home arrangements, it does not matter how wealthy they are: they are entitled to be placed under the ordinary s18 duty to meet needs, if there is nobody able and willing to do it. That makes the council the contractor, and the person is emphatically not a self-funder. They enjoy the status of a full cost payer, but under the council’s care and commissioning responsibilities under the Care Act.
So the ‘loan’ was being made without legal authority since there was nobody with the lawful authority to agree to a loan. We think that this is what Councils call brokerage, in the context of care home arrangements, but there is no such thing. There is either a duty to meet need, or there is not.
It was spending council money in discharge of its Care Act responsibilities, and not in a position to threaten to delay a move, pending hoped-for repayment. What it should have said was that the arrangement for necessary care and support for a person under the Mental Capacity Act authorises anyone who has spent that money to the return of a reasonable sum and that that provision gives rise to a liability in quasi-contract despite lack of capacity which could be repaid once there was a deputy in place (itself). That was the right way to put it, if it did not wish to admit to acting under the Care Act. But it would have had to have applied the charging framework because it was operating under the Care Act!
Wiltshire could have taken deputyship itself, at any stage, and much sooner than it did. It ignored the guidance with regard to what should be done to ensure repayment of whatever charge had been properly levied. If it had done so, it would have then been acting privately and not under the Care Act at all.
The report’s thrust seems totally unaware of the Guidance as to what should happen when a person’s capital depletes and the person lacks capacity: the relatives must be consulted, but the decision-maker as to a move if there is no top-up available and able to be lawfully accessed, is always the council, acting under the Care Act, assuming that no deputy has been appointed as yet. If the council becomes the deputy, then it does not act under the Care Act at all; it acts privately, but under the Mental Capacity Act.
From the lens of adult social care law, deputyship delays cannot wholly suspend a council’s Care Act duties. Case law and statutory guidance emphasise that where a person lacks capacity and no legal representative exists, section 18(3) continues to impose a duty to meet needs, using section 19 powers for urgent cases. Community care law indicates that arrangements via interim contracts must remain transparent about their legal basis and financial impact, so the individual’s property rights are not indirectly infringed.
Ms A appears to have thought that the residential placement was supposed to be a 6 week assessment stay free of charge. This suggests she was expecting the Discharge to Assess model to be used and the facts suggest that this would have been appropriate in this case since further assessment was planned as to the kind of placement Ms X required. The report does not explore this point at all.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Wiltshire Council (24 017 754) 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.
Did you enjoy this analysis? Want to stay informed with our weekly Alert Service?
Then do click here to find out how you can receive the latest insights from experts and commentators and stay updated on key judicial decisions, ombudsmen’s reports, and critical law and policy changes, all for just £50 per YEAR and sent straight to your inbox or WhatsApp!