Summary: There was no evidence of fault in the way the Council decided to include Mrs C’s property as capital in its financial assessment and in its assessment of her needs and risk to her safety in deciding the care plan.

The complaint

1. Mr B complains about the Council’s decision to include his mother’s property in its calculation of her capital. He also says the care package should have been reduced earlier.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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 and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

5. The Care Act 2014, the Care and Support Statutory Guidance 2014 (CASS) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge.

The principles

6. The CASS Guidance says the approach to charging for care and support needs should (among other things):
• ensure that people are not charged more than it is reasonably practicable for them to pay;
• be clear and transparent, so people know what they will be charged;
• promote wellbeing, social inclusion, and support the vision of personalisation, independence, choice and control;
• support carers to look after their own health and wellbeing and to care effectively and safely.
7. Councils must carry out a financial assessment to make a decision about the charges. This will assess the person’s capital and income.
8. If a person refuses a financial assessment or the council is unable to carry out a financial assessment because of the adult’s refusal to cooperate with the assessment, then the local authority is treated as having carried out the financial assessment.
9. There is a difference in the charging rules for residential care and for care at home. I will set out the different rules for both settings as they are relevant to the complaint.

Capital

10. 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’.

Property disregard

11. The value of a person’s only or main home is normally disregarded when a person receives care at home.
12. The value of the home is, generally speaking, included in the calculation of capital when a person receives care at a residential care home although there are exceptions.
13. The general principle is that a person should not be forced to sell their home in their lifetime to pay for their care when they move to a care home. If a person’s only asset is their home, then, subject to certain conditions, the property will be disregarded during the first 12 weeks in a care home. Councils must offer also deferred payment agreements (DPA) to people who are in a care home and who meet certain criteria. By entering into a DPA, the person delays paying the care costs by having a legal charge placed on the property. The costs are deferred until the person dies or the property is sold.
14. Councils have discretion to offer DPAs to people whose care and support is provided in supported living accommodation.

Safeguarding duty

15. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk.

What happened

16. Mrs C suffers from Alzheimers/dementia. She lacks capacity to make decisions about her health and welfare or her finances and Mr B has a lasting power of attorney to make the decisions on her behalf.
17. Mrs C was living alone in a park home (mobile home) with a support package funded by a different council, council K. Carers provided support 4 times a day, for 30 minutes. The 30 minute morning visit was extended to an hour, twice a week, to enable Mrs C to have a shower.
18. Mr B said he was increasingly struggling to support his mother and wanted her to live closer to him.

Council K’s assessment

19. Council K carried out a mental capacity assessment and said Mrs C lacked the capacity to make a decision about the move. Council K’s social worker made a referral to Trafford Council and said:
• The agency currently supporting Mrs C felt that the 4 visits a day were not meeting her needs.
• Council K’ social worker was initially of the view that Mrs C needed residential accommodation, but Mr B’s wanted Mrs C to move to extra care sheltered accommodation. The social worker agreed that this was the least restrictive option and agreed to recommend this option.
• Mr B had accepted that if sheltered accommodation did not meet Mrs C’s needs, she would need to move to residential care.
• There had been safeguarding concerns about Mr B in the past. The allegations had been unsubstantiated, but the social worker felt that the Council should be aware of the background.
20. Trafford Council’s social worker spoke to Mr B on 21 September 2017. The social worker said the Council’s charging policy may vary from Council K’s. Mr B said Mrs C owned her own home which would be sold. He understood that this was likely to affect Mrs C’s contribution towards her care.
21. Mrs C moved into a residential care home in the Council’s area on a respite basis around 16 October 2017. The Council’s social worker carried out an assessment of Mrs C’s needs. He noted that Mr B had found an extra care housing facility for Mrs C.
22. The social worker spoke to Mr B on 19 October 2017. Mr B said he was worried about the financial aspects of selling Mrs C’s house but had discussed it with Council K’s social worker. He said Mrs C should have 4 calls a day as this routine suited her.
23. The social worker spoke to Mr B on 25 October 2017. He explained that Mrs C may be a full cost payer once the assessment was done. Mr B said he understood that the Council’s policy may be different from Council K’s.

Initial meeting on 25 October 2017

24. The social worker had a meeting with Mrs C, Mr B, the manager of the care home where Mrs C was staying and the manager of the extra care housing on the same day. The discussion was:
• The professionals at the meeting all felt that extra care housing could not meet Mrs C’s needs and that she needed a residential placement. Mrs C’s dementia was advanced. She was disorientated and needed support in all aspects of her care. She needed 24-hour monitoring as she would wander off and put herself at risk. Supported housing could not give 24-hour monitoring and would therefore be unsafe.
• Mr B disagreed.
• The social worker said the Council would not support a move to extra care housing as this would not meet Mrs C’s needs and would put her at risk. However, as Mr B had a lasting power of attorney (LPA) for Mrs C, he could make decisions in her best interest. Mr B was described as ‘extremely upset’ at this outcome.
25. After the meeting, the Council agreed to carry out a re-assessment of Mrs C’s needs.

Best interest meeting on 15 November 2017

26. Another social worker reassessed Mrs C and held a best interest meeting. At this meeting, the manager of the care home where Mrs C was staying said Mrs C had tried to leave the building via the fire exit on one occasion. The homecare manager said that a move to extra care housing could mean that Mrs C put herself but also others at risk. The extra care building was a large building and if Mrs C got lost, she could become disorientated.
27. Mr B said he accepted that, should concerns be raised or if Mrs C was at further risk and extra care housing was unsuitable, then Mrs C would have to move to a residential placement.
28. At the end of the meeting, the social worker agreed that Mrs C could move to extra care housing as it was the least restrictive option
29. The social worker explained some of the finances at this meeting although there is no detail of what was discussed. The social worker gave Mr B the Council’s factsheets and Mr B signed a financial assessment form.

Financial assessment

30. The Council sent the financial forms to Mr B for him to fill in on 29 November 2017.
31. Mrs C moved into extra care housing on 6 December 2017. Mr B rang the Council and said he would bring in the documentation it needed.
32. The Council sent a further letter in January 2018 as Mr B had still not sent the financial documents. Mr B told the Council he had lost the forms and the Council sent the forms again.
33. Mr B sent in the form on 29 January 2018, but still did not include any of the documentation that was required in terms of income or capital. The form also did not include all the details of Mrs C’s income. The Council was going to send Mr B a final reminder on 30 January 2018. Mr B says he rang the Council and told them about the property and where to find the information about the property. The Council’s finance department did a land registry check and noted that Mrs C had a property which had been for sale since October 2016.
34. The Council concluded that Mrs C was over the capital threshold and was a self-funder. It is my understanding the Council stopped pursuing Mr B for the financial information because it had enough information in terms of the property.

Safeguarding referral

35. The Council received the first of many safeguarding referrals regarding Mrs C in January 2018. The concerns related to Mr B’s treatment of Mrs C and Mrs C leaving the property when Mr B was not there. This had happened 7 times and Mrs C had become disorientated, confused and anxious.
36. The Council said an urgent review of the placement was needed.
37. Mr B called the finance department on 19 and February 2020 as he disagreed with its decision to include Mrs C’s property as capital. He said the property had not been sold yet, he did not know how much it would sell for and he had never been told this would happen. He wanted a meeting with the financial assessment team, but the team told him they did not offer appointments.
38. The Council received another safeguarding referral on 22 February 2018.

Review on 27 February 2018

39. The social worker carried out a review assessment on 27 February 2018. The social worker noted there had been another incident where Mrs C left the flat and ended up on the roof of the building. Staff said that they were putting other residents at risk as they were having to respond to Mrs C wandering off and being distressed.
40. The social worker recommended an increase to the care package to include carers to sit with Mrs C whenever Mr B went out. Mr B had a part-time job.
41. Mr B refused as he did not want to increase the costs of the care package.
42. Mr B wanted a deferred payment agreement, but the social worker said the Council could not offer this while Mrs C was in extra care housing. Mr B said he had no intention of paying the fees as he had not been informed that Mrs C’s property would be included in the calculation of her charges. The social worker said Mr B would need to discuss this with the finance department.
43. Mr B said he wanted to reduce Mrs C’s package of care to 2 calls a day as he was providing the care that the carers were providing during 2 of the calls. The social worker said the Council would not reduce the package as Mr B was not in the home as frequently as he had said and this meant Mrs C wandered off and put herself and other residents at risk. Mr B threatened to take the Council to court.
44. The social worker concluded that Mrs C could not stay at the extra care housing facility. As Mr B did not agree and as he held an LPA for Mrs C, the social worker said a best interest meeting was needed.
45. The social worker spoke to Mr B on 23 March 2018 and tried to persuade him to accept some respite support for Mrs C. He informed him of the concerns raised by the care staff, but Mr B dismissed this.
46. On 16 April 2018 an independent mental capacity advocate (IMCA) was appointed as the advocate for Mrs C in the safeguarding case and the Care Act assessment.
47. Mr B called the social worker on 8 May 2018 and tried to cancel the upcoming best interest meeting. He was described as very angry and said that, as he had a Power of Attorney, only he could make decisions regarding Mrs C. The social worker explained about the Council’s duty of care and safeguarding duty and said the meeting would go ahead.

Best interest meeting on 10 May 2018

48. The Council held the best interest meeting on 10 May 2018. The social worker explained the Council had received 4 safeguarding referrals regarding Mrs C and considered Mrs C to be at risk. She explained the concerns relating to Mrs C leaving the property when Mr B was not around.
49. Mr B insisted that he would not agree to Mrs C moving to a care home and would take the Council to court if necessary. The IMCA said he had not met Mrs C yet so it was agreed to postpone the final decision.
50. The Council referred Mr B to the Office of the Public Guardian because it was concerned that Mr B was not making best interest decisions regarding Mrs C’s accommodation.
51. Mr B spoke to the social worker at the end of June 2018. He wanted Mrs C to go into a care home for respite. He said he was starting to agree that Mrs C may need a residential placement. The social worker explained that Mrs C may need to pay the full cost. Mr B asked about a deferred payment agreement and the social worker said that this only applied to a permanent residential placement and he would have to apply to the finance department. The social worker said Mr B should fill in the financial forms so that a full financial assessment could take place.

Best interest meeting on 12 July 2018

52. At the next best interest meeting on 12 July 2018, Mr B agreed that:
• Mrs C should move to a care home, but the care homes he preferred did not have any vacancies.
• Mrs C should have sitting support for the times when he went out.
53. Mr B went to see a solicitor after the meeting. The solicitor wrote to the Council on 17 July 2018 and said:
• Mr B refused to pay the outstanding invoices for the care package as he had been led to believe that the Council would not take Mrs C’s property into consideration.
• The care package was unnecessary as he did a lot of the tasks that the carers were meant to carry out.
54. The social worker contacted Mr B the next day to discuss his request to reduce the care package. Mr B said he provided a lot of the care the carers were meant to provide. He said Mrs C needed support with personal care (showering) and toileting (changing the continence pads). He said Mrs C had attended a day centre twice and he would like to continue this until she moved into residential care. He said he could use the money he saved by reducing the care package on the extra cost of the day centre.

Meeting on 26 July 2018

55. The Council had a meeting with Mr B and the care provider on 26 July 2018. The minutes of the meeting say It was agreed to reduce the care package as follows:
• Am call – from 1 hour to 30 minutes.
• Lunch call – from 30 minutes to 15 minutes.
• Tea call – from 30 minutes to 15 minutes.
• Evening call – from 30 minutes to 15 minutes.
56. Mr B says that the record of this meeting was wrong as the lunch call remained at 30 minutes, but the tea call was removed.
57. The package was kept at 3 (or 4) times a day to ensure that the carer could support Mrs C in her toileting and personal care and to maintain her personal dignity. The care provider said the carers would struggle to get Mrs C ready for bed in 15 minutes so it was agreed that this would be kept under review.

Council’s response

58. The Council responded to Mr B’s solicitor:
• Mr B had been informed about the inclusion of the property as capital.
• The care package was based on an assessment of Mrs C’s needs and the visits continued to be necessary to meet the needs. Mrs C needed support in washing herself, getting dressed and meeting her toileting needs. She could not perform these tasks independently and it would be inappropriate for Mr B to assist her in these tasks.
• Mrs C needed additional support as she could not be left unsupervised when Mr B was not with her.
• The Council had a duty to start a safeguarding investigation to protect vulnerable adults from harm.
• Safeguarding concerns had been raised about Mr B and the Council had referred the matter to the Office of the Public Guardian. The Council could not reduce the care package until the outcome of the OPG’s investigation was known.
59. The Council reviewed the care package on 6 September 2018. It said the care package was meeting Mrs C’s needs and Mrs C was now attending the care home a couple of times a week which gave Mr B a break from his caring role.
60. Mr B contacted the finance department on 3 October 2018. He wanted a standing order form to be sent to him. He said he would start making repayments, but for an amount he chose as he was still refusing to pay the full amount. The finance officer sent Mr B an income and expenditure form so that the Council could calculate a repayment plan. Mr B started paying towards the costs on 18 October 2018.
61. The Council received two further safeguarding referrals about Mrs C in October 2018.
62. The Office of the Public Guardian concluded its investigation and said it would recommend that Mr B could remain Mrs C’s attorney, particularly as Mr B had agreed to increase Mrs C’s support until she moved to a care home and had agreed a payment plan for the outstanding care fees.
63. The Council agreed to take out the lunch and tea-time call on 16 October 2018. The carers said they only supported Mrs C with toileting and personal care during that time.
64. Mr B sold the Park home on 19 October 2018 for £60,000.
65. Mrs C moved to a care home on 24 April 2019.
66. I asked the Council how it assessed that Mrs C was not charged more than she could pay. The Council said that Mr B had never fully cooperated with a financial assessment. The Council said the guidance on light-touch financial assessments referred to the ownership of property as one of the factors that may lead the Council to conclude that a person could afford the charges.

Analysis

67. I have spoken to Mr B and he has explained to me how difficult this entire experience has been for him. He said he became Mrs C’s full-time carer which was very stressful and difficult as she had advanced dementia and needed 24 hours support. At the same time, he was receiving invoices which he could not pay as Mrs C’s income was less than the cost of the care. Mr B said he felt he was ‘going under’.
68. I do not doubt the distress that Mr B felt. However, I can only investigate whether there was any fault in the Council’s actions.

Financial assessment

69. Mr B says he was not informed that the Council would include the property in its financial assessment. From the information that I have seen, Mr B knew from the outset that the property would be included in the calculations, and that this would affect the amount he would have to pay. The social worker told Mr B in October 2017 that, once the financial assessment had been done, Mrs C may well be a full cost payer. Therefore, I do not find evidence of fault in that respect.
70. The treatment of mobile homes is not always straightforward as they can be considered as chattel or as property (capital) and this depends on their value, the type of home, the legal agreement and so. The Council had discretion to make the decision to include the park home as capital.
71. I find no fault in the Council’s decision to treat Mrs C as a self-funder because she owned property as this was in line with the law and guidance.
72. As part of its financial assessment, the Council also had a duty to assess whether Mrs C was not charged more than it was reasonably practicable for her to pay.
73. This is slightly different issue as it touches upon the unusual and unfortunate position Mrs C was in, from a financial assessment point of view. She received care and support at home but the home she owned was not disregarded because she was not living in it. This meant she was not automatically entitled to all the safeguards provided to people in a similar position who are in a care home such as a deferred payment agreement or a 12-week property disregard. She was, in effect, unable to pay the fees until the park home was sold.
74. I have not found fault, but I do think there were missed opportunities in this case on both sides for better communication in terms of the finances. The issues of the finances and the care package and the safeguarding concerns were all interlinked to some extent. It was concerning to see that a case where a person could not pay for a care package was resulting in safeguarding concerns and the involvement of the OPG.
75. Better communication would not have made a difference in the overall debt Mrs C owed, but it may have made a difference in how soon the Council expected payment. It may have resulted in a more realistic payment plan which allowed Mrs C to pay what she could and then pay the balance once the park home was sold. That would have been good practice.
76. However, I have not found fault for two reasons. Firstly, the Council repeatedly asked for all the financial information from Mr B, but he did not provide it. Therefore, it was unable to fully assess Mrs C’s financial situation and was not fully aware of the situation. The Council had the right to do a more limited financial assessment based on the information it had.
77. Secondly, Mr B’s main position throughout the conflict was that he was not in agreement that the property was being counted as capital and he therefore refused to pay. He was not saying he could not pay, but rather that he would not pay.

Reduction in the care package

78. I have also considered Mr B’s complaint that the Council should have reduced Mrs C’s care package earlier.
79. It is not for the Ombudsman to say what Mrs C’s care package should be but I have considered whether the Council’s assessments and decision making was in line with its duties.
80. I find no fault in the initial setting up of the care package. The package was a continuation of the package Mrs C received from Council K. Mr B agreed this was the package she needed. At that stage, the plan was that Mrs C would live in the extra care housing with the support from the carers. The plan was not for Mr B to move in permanently, although this became necessary later because Mrs C could not live on her own.
81. Mr B asked for the reduction in the care package at the meeting in February 2018, but a reduction was not agreed until July 2018.
82. The meeting in February 2018 was organised because by this stage, the Council had received several safeguarding referrals and, as far as the Council was concerned, extra care housing was not suitable and was putting Mrs C at risk. The Council wanted Mrs C to move to a care home and wanted an increase to the care package in the meantime. Mr B refused both proposals and threatened court proceedings. Because Mr B held an LPA, the Council could not overrule his decision.
83. I accept that Mr B may well be correct in saying that there was some duplication of the care provided when the carers attended. However, I also understand the Council’s point of view which was that the care package was not only needed to meet Mrs C’s care needs but also because of the safeguarding concerns. It allowed Mr B to take a break and it also meant that carers were going in four times a day to ensure Mrs C was safe.
84. The Council had a dual role. It had to ensure that Mrs C’s needs were met but it also had to safeguard Mrs C if it thought she may be at risk. Therefore, I cannot really criticise the Council for not agreeing to a reduction of the package at this stage.
85. It was only after Mr B agreed to increase the care package by funding sitting support that the Council then agreed that the four visits a day could be reduced.
86. This was done in July 2018 when the Council agreed to reduce the time of the visits to allow the carers to attend to Mrs C’s toileting and personal care needs.
87. I note the Council reduced the care package further in October 2018 and reduced it to a visit in the morning and in the evening. I am not clear why the Council agreed this as it contradicts its earlier position that Mr B should not be attending to Mrs C’s toileting and personal care needs.

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Final decision

88. I have completed my investigation and have not found fault by the Council.

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Investigator's decision on behalf of the Ombudsman