Summary: Mr Y complains the Council failed to provide him with information about funding for his father’s (Mr X) residential care. He complains the Council failed to carry out a financial reassessment when his health declined significantly in the 12-18 months before his death. The Council was not at fault.

The complaint

1. Mr Y complains the Council failed to provide him with information about funding for his father’s (Mr X) residential care. He complains the Council failed to carry out a financial reassessment when his health declined significantly in the 12-18 months before his death.
2. Mr Y says this has led to him receiving a bill of nearly £20,000, causing him distress and shock.

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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”. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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

5. I have spoken to Mr Y about his complaint and considered information provided by him and the Council. I have written to Mr Y and the Council with my draft decision and given them an opportunity to comment.
6. I gave the Council and Mr Y the opportunity to comment on my draft decision.

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What I found

Background

7. Under the Care Act 2014 local authorities have statutory duties and powers for providing support to people who meet local eligibility criteria, and for charging the person for services.
8. The Care Act came into force in April 2015. Section 14 of the Act explains the power of the local authority to charge for the cost of care. Section 17 says a local authority must assess the person’s financial resources and any amount the person would have to pay towards the cost of meeting the needs for care and support once it has decided on eligibility.
9. The Care and Support (Charging and Assessment of Resources) regulations 2014 set out how a local authority should carry out financial assessments and the treatment of income and capital.
10. In assessing what a person can afford to contribute, a local authority must apply the upper and lower capital limits. The upper capital limit is currently £23,250 and the lower limit £14,250. A local authority will consider a person with assets above the upper capital limit as able to afford the full cost of their care, which is known as self-funding.
11. In certain circumstances, councils must ignore the value of the person’s main or only home when deciding how much they have to pay towards care. These include where the person no longer occupies the property, but it is occupied in part or whole as their main or only home by a relative who is either aged 60 or over, a child of the resident aged under 18, or is incapacitated. This rule only applies where the relative has continuously occupied the property since before the person went into a care home.
12. The NHS can provide continuing healthcare at home or in a care/nursing home. The NHS is responsible for meeting the full cost of care in a care home for residents whose primary need for being in care is health-based. The 2012 Regulations say the NHS should assess for NHS Continuing Healthcare where it appears somebody may be in need of such care. Complaints about the NHS are dealt with by the Parliamentary and Health Service Ombudsman.

What happened

13. Mr X moved into residential care in 2016. Mr X owned a 50% share in his home. His son, Mr Y owned the other 50% share.
14. Mr X paid for his care out of his savings until they dropped below the upper limit of £23,250. His daughter (Ms Z) approached the Council to seek financial help to pay for Mr X’s care in July 2017. Ms Z told the Council she was applying for a Power of Attorney (POA) to take over her father’s finances as he had lacked the capacity to make financial decisions himself.
15. The Council agreed to pay the full cost of Mr X’s care in September 2017 until the outcome of a financial assessment was known.
16. Mr X died in spring 2018 before Ms Z could obtain POA. The cost of Mr X’s care now totalled £19,988.01. The Council provided invoices for these costs in September 2018.
17. Mr Y then contacted the Council to complain in April 2019 about the invoices. He said the Council should not have included the property in assessing his father’s finances as he owned 50% of the property. He said it had passed directly to him when Mr X died. He also complained the Council had charged for Mr X’s as he felt that because of his severe ill-health, he should have received continuing health care funding.
18. The Council responded and denied any fault. It explained it had been unable to carry out a financial assessment before a POA could be appointed and could provide information about Mr X’s finance. However, before a POA had been appointed, Mr X had died. The Council said until it could carry out the assessment, there had been no need to contact Mr Y as a joint owner.
19. The Council’s response offered to assess Mr X’s estate to calculate the care costs as they would have been had it have been able to do this before Mr X’s death. As Mr X had owned 50% of the property before his death, the Council said it would include this proportion of Mr X’s property in the assessment.
20. The Council then sent a final invoice to Mr Y, addressed to the executors of Mr X’s estate. It asked for payment from the estate and asked Mr Y if he was not the executor to pass the invoice to the person dealing with the estate.
21. Mr Y asked the Council to reconsider its response. He said the Council already had details about Mr X’s finances and the estate and he would not provide further details. The Council has no record of receiving this information.
22. The Council then provided its final response in June 2019. It again asked for details for the executor of the estate, explaining it could not tell Mr Y who was legally responsible for the charges without this information.
23. The Council has said the local NHS would be responsible for assessing Mr X’s claim to CHC funding.
24. Mr Y has confirmed that he has contacted the local NHS to ask for a retrospective assessment to consider if his father would have been eligible for CHC funding. Mr Y has confirmed he has sold the property which Mr X had a 50% share in.

Findings

25. Under the statutory guidance, the Council could include Mr X’s 50% share in the property in its assessment of Mr X’s finances. This is because it forms part of his capital assets. Mr Y was not living in the property when Mr X moved into residential care or when the family asked the Council for help in funding the care. It was therefore not Mr Y’s main or only home and would not meet the criteria for a mandatory disregard. The Council was not at fault for including the 50% share of the property when considering Mr X’s ability to pay towards the cost of his care.
26. Mr Y was not provided with financial information about Mr X’s care costs until after his father’s death. While Mr Y shared property ownership with Mr X, this would not necessarily have been obvious at the time to the Council. The Council would not have needed to gather such information until it could gain the necessary information to carry out a financial assessment. This would not have been possible until a POA had been granted. Until it was possible there was no requirement for the Council to discuss Mr X’s care charges with Mr Y. Therefore, there was no fault in this.
27. Until July 2017, Mr Y had self-funded his care. This was because his assets were worth more than £23,250. When Mr X’s savings reduced below this level, the Council was contacted for assistance with his care costs. Although the Council would have been aware that the savings were below this level, as Mr X lacked capacity, it could not assess what level of contribution Mr X should pay until information could be provided.
28. The information for such an assessment could not be provided until someone with the POA could access Mr X’s financial information. Without information to show that Mr X had assets of less than £23,250, the Council was entitled to assume he had assets above this level, which would mean he would not be entitled to assistance with his care costs. As he would then be self-funding he would need to pay the full amount of his care costs.
29. As Mr X died before a POA was granted, the Council was unable to assess Mr X’s finances. It has offered to do this retrospectively if information from the estate is provided. This is an appropriate offer.

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Final decision

30. I have completed my investigation to find the Council was not at fault.

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Investigator's decision on behalf of the Ombudsman