Summary: The Council has admitted there was fault in the way it calculated Mrs C’s care home fees and the information it gave. The Council has agreed to exercise discretion and says it will not include Mrs C’s home in its calculation of her capital which greatly reduces the outstanding debt. As this outcome is more than the Ombudsman could achieve, the Ombudsman has closed the investigation.

The complaint

1. Mr B complains on behalf of his mother, Mrs C, who has passed away. He says the Council failed to properly communicate with him about Mrs C’s care home fees. He says the Council never told him that it would take Mrs C’s home into consideration when calculating the charges.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have discussed the complaint with Mr B. I have considered the documents that he has sent, the relevant, law, guidance and policies and both sides’ comments on the draft decision.

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What I found

5. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance 2014. The Act says that, if a person needs residential care, the Council will assess their capital and income.

Capital

6. The upper capital limit is currently set at £23,250 and the lower limit at £14,250. A person with assets above the upper capital limit will have to pay for their own care. Those with capital between the upper and the lower limit will make a contribution known as ‘tariff income’.
7. The value of a person’s only home will be included in the calculation of their capital. However, the home is disregarded in certain circumstances, for example when another person such as a married partner is still living in the home.

Income

8. Even if a person’s capital is below the capital threshold limit of £23,250/£14,250 and they are eligible for Council funding to pay the care home fees, a person may still need to pay a contribution from their income.
9. If the person is in a care home, the local authority must leave the person with a minimum amount of income. This is known as the Personal Expenses Allowance (PEA) and the amount is set out in regulations and updates sent via a local authority circular. Anything above this may be taken into account in determining the contribution.

What happened

10. Mrs C was an elderly woman who was living at a care home. She lacked the mental capacity to make decisions about her finances and her husband, Mr C made those decisions for her.
11. Mrs C’s care was funded by the NHS (continuing health care funding or CHC) until 11 February 2016 when the funding stopped.
12. The Council carried out a financial assessment of Mrs C in 2016 and said her capital was over the threshold so therefore Mrs C would have to self-fund her care.
13. Mr C died in September 2016. Mr B did not have a Lasting Power of Attorney for Mrs C so he had to apply to the Court of Protection for deputyship to allow him to manage Mrs C’s financial affairs. Mr B was granted deputyship in April 2017.
14. Mrs C became eligible for CHC funding from 25 April 2018 so her care was entirely funded by the NHS again from that date. Mrs C died on 15 October 2018.
15. It is our understanding that Mr B made payments of £10,900 towards the charges and Mr C had paid £12,330.
16. Mr B contacted the Council in December 2018 as the Council had sent him an invoice of £26,467 relating to unpaid care charges. Mr B said he had not been aware of this debt before then.
17. Mr C pursued a complaint against the Council in June 2019 about this issue. He said he would not pay the outstanding debt of £26,467 and questioned the Council’s calculation of Mrs C’s capital.
18. The Council replied and said that, during its investigations, it had come to light that Mrs C owned a property. As Mr C had died, the Council could take that property into consideration when it calculated Mrs C’s capital. Mrs C would therefore be expected to pay the full cost of her care and the outstanding invoice was correct.

Response to the Ombudsman

19. The Council has responded to the Ombudsman’s investigation. It says it has reviewed the case and admits there was fault in the way it dealt with Mrs C’s finances.
20. The Council says that, because of an internal communication error, its finance team was not informed in September 2016 that Mr C had died. Therefore, the Council did not take Mrs C’s property into consideration when it calculated the invoices. That was the first error. Secondly, the Council made errors in its calculation of Mrs C’s capital (without the property) which resulted in the £26,467 invoice.
21. The Council has considered all this. The Council says that, if it had done things properly and charged Mrs C the full cost from the date that it could take the property into consideration (September 2016), Mrs C’s outstanding debt would now be £43,000.
22. However, the Council has decided to exercise discretion and will not pursue this debt. Instead, the Council has re-calculated Mrs C’s debt, based on her capital (without the property) and her income and says the outstanding debt is now £5,460.
23. As the Council has exercised its discretion in favour of Mrs C and as this is a far better outcome than the Ombudsman could achieve, I will close the investigation.

Agreed action

24. The Council has agreed to exercise discretion and not include Mrs C’s home in the calculation of her capital. This will reduce the outstanding debt to £5,460.

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Final decision

25. I have completed the investigation as the Council has agreed a remedy which is higher than the Ombudsman could recommend.

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Investigator's decision on behalf of the Ombudsman