Decision : Upheld
Decision date : 21 Sep 2020
The Ombudsman's final decision:
Summary: Mr Z complains on Miss X’s behalf of fault by the Council in charging for care after her assets fell below the threshold of £23,250. The Council took too long to carry out a financial assessment and caused Mr Z time and trouble in pursuing repayment of a large sum of money, as well as making both of them fearful that she would be evicted from a care home. It will apologise to both Mr Z and s Mis X and pay them a total of £1250 for the distress caused by fault.
- The complainant, whom I shall call Miss X, is represented by a friend, Mr Z who holds lasting power of attorney for her financial affairs and for her health nand welfare.
- Mr Z complains that the Council failed to act properly after he told it that her assets had reached the £23,250 threshold where she could no longer fund her own residential care.
- Specifically, Mr Z says the Council:
- Took over two years to complete a financial assessment, despite repeated chasing from Mr Z between 2016 and 2018, causing Miss X to have to pay the fees from her diminishing funds and leading the care home to threaten to evict her when she had no money left;
- Wrongly paid the care home about £20,000 in February 2018 instead of reimbursing Miss X, who had been paying the fees from her own funds;
- Failed to pay Miss X’s care fees after February 2018 as it agreed, causing the care home to use the money wrongly paid and then to threaten to evict Miss X again when the lump sum ran out;
- Wrongly told him to take up the matter of the lump sum paid in error with the care home when the Council was responsible for both the error and for Miss X’s placement; and
- Wrongly told him that Miss X owed almost £7000 in top-up fees when it had decided that it would be against her best interests to move her from the care home, where she had been a resident for several years.
The Ombudsman’s role and powers
- 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)
- 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)
- We normally name care homes in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home. (Local Government Act 1974, section 34H(8), as amended)
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
How I considered this complaint
- I read Miss X’s complaint and spoke to Mr X on the telephone. I considered the information the Council sent me in response to my written enquiries. I also took account of its duties under the Care Act 2014 and the (Choice of Accommodation) Regulations 2014.
- I have decided not to name the care home. It is not large and Miss X’s circumstances, which it is necessary to relate to properly explain what happened, are such to create a risk that she might be identified.
- I shared a draft of this decision with both parties and invited their comments. I received none.
What I found
- Mr Z has held lasting power of attorney (POA) for Miss X’s finances and her health and welfare since 2014. She has lived at the care home for several years. At first, she paid her own fees. Over time, this caused her assets to diminish. In September 2016, he told the Council Miss X would soon reach the savings threshold of £23,250 where councils must pay most or all or the care fees. The complaints below concern what happened over approximately the next two years.
- For each point of complaint below, I will usually lay out what should have happened, before stating what occurred and if there was fault. I will deal with injustice caused by fault generally after the last complaint.
- There is no specific timescale for completing a financial assessment, but a few weeks would be reasonable, particularly where a person’s funds were running out.
- The Council has confirmed both Mr Z and the care home told it in late 2016 that Miss X would no longer be able to fund her own care as her assets would soon be less than £23,250. As the Council did not assess Miss X’s finances, Mr Z chased this up in January and July 2017. The Council appointed a social worker after the second contact from Mr Z, but it did not complete the financial assessment until 20 December 2017. By this time, Miss X had savings of £4000 left. This delay was fault. However, as explained later, while the Council completed the financial assessment in December 2017, Miss X’s continued residence at the care home was not confirmed until April 2018 due to further fault by the Council.
Complaint b): Paying the care home rather than Miss X
- The care home’s records show the Council paid it about £16,000 in August 2018, but that this was cancelled in February 2019 and another payment of about £28,000 made in March 2019. It refunded this to Miss X.
- The Council says its contract was with the care home, not Miss X, so it paid the home. It says the care home should have refunded Miss X. It was for the Council to decide which account to pay. But it was responsible for the delay that caused Miss X the financial loss. And it was responsible for Miss X’s placement once she could no longer fund her own placement. It should at the least have followed up with the care home promptly to see that Miss X received back the money she was owed. I find it at fault for leaving Mr Z to chase this.
Complaint c): Paying care fees after February 2018
- The (Choice of Accommodation) Regulations 2014 (SI 2014/2670) sets out what people should expect from a council when it arranges a care home place for them.
- It says that once a needs assessment has determined what type of accommodation will best suit the person’s needs, the person will have a right to choose the particular provider or location, subject to certain conditions.
- A council must arrange to accommodate the person in a care home of his or her choice provided:
- The accommodation is suitable for the person’s assessed needs;
- To do so would not cost the local authority more than the amount in the adult’s personal budget for accommodation of that type;
- The accommodation is available; and
- The provider of the accommodation is willing to enter a contract with the local authority to provide the care at the rate identified in the person’s personal budget on the local authority’s terms and conditions.
- Where a person is living in a care home and the weekly fees are greater than the price where there is a choice of placements, a council must pay the full fees if it is in person’s best interest to remain there. It cannot request a third-party top-up in these circumstances. Assessing the person’s best interest may also take a few weeks. Council should also discuss financial matters with the person holding POA for finances where there is one.
- The Council confirmed it completed the best interest assessment in January 2018. It did this promptly. It decided Miss X should not be moved from the care home.
- At this point it should have paid her fees and conducted any financial negotiation with the care home separately. However, it has confirmed that it had set a contract price and sought a weekly contribution from Miss X. A manager noted that if she could not get someone to pay the third-party top-up, or if the care home did not agree to accept the contract price, Miss X would have to move out after 1 March 2018, when the Council would cease paying the extra amount. A social worker discussed the top-up fee with Miss X on 18 April 2018.
- It was fault to seek a third-party top-up for Miss X’s care because the Council had already decided it was not in her best interest to move.
It was fault to consider she could be moved against her best interest if she did not find someone to pay a third-party top-up.
It was also fault to discuss the matter with Miss X rather than Mr Z, who had POA for her finances.
Complaint d): Directing Mr Z to the care home
- As already explained under complaint b), the Council failed to take responsibility for rectifying the loss it caused.
Complaint e): A £7000 debt
- The Council provided its calculations of Miss X’s care costs. It says the sum owed is the usual client contribution from income. The evidence of the calculations supports this. The Council is entitled to seek to recover this sum from Miss X, via Mr Z as her POA for finances. It has not been at fault here.
- However, it is not surprising that Mr Z wrongly thought this sum was accumulated third-party top-up charges.
- The records show that while the Council sent Mr Z a copy of an invoice in September 2019, it did not explain this was the client contribution based on income or how it arrived at it. Mr Z asked again in November 2019, after the Council emailed him again to say the arrears were building up. Again, the Council gave him no explanation. The only clue he would have had was in a letter of 13 March 2018, that referred to a change happening because of an increase in Miss X’s benefits.
- Like most people, Mr Z is not an expert in adult social care charging. And the Council’s earlier attempt to get Miss X to find someone to pay a third-party top-up would have supported his assumption that the sum sought was third-party top-up fees. Given the nature of the fault in this case, it was only when the Council provided the calculations and explained them during the investigation that the matter became clear.
- Miss X’s savings, which would have been about £23,000 or £24,000 in September 2016, had depleted to £4000 by December 2017 when the Council carried out its financial assessment. By April 2018, when a social worker was asking Miss X if anyone could pay a third-party top-up that the Council had no right to ask for, there can have been little if anything left. The £28,000 did not return to her account until March 2019. The issue of debt remains unresolved.
- Mr Z says he and Miss X both feared she would be evicted from the care home. That fear must have been particularly acute in late 2017 and the first four months of 2018, when she had almost no money and the Council was considering moving her from a place where she had previously paid full cost for some time and she treated as her home. And while the debt built up since 2018 is not a third-party top-up, the Council’s failure to clarify this after its previous faulty actions has led to Mr Z’s confusion, and the ongoing dispute with the care home, which has legitimately sought to cover the care fees. Mr Z describes trying to keep financial news hidden when he visited Miss X, but he says that they had both ended up in tears at times. Shielding Miss X from bad news would not have been any easier when a social worker raised the matter of third-party top-ups with Miss X directly rather than dealing with Mr Z.
- Speaking to me on the telephone brought back those emotions for Mr Z, who became distressed during more than one call I had with him. He told me that at some points, Miss X understandably wondered if he had taken the money from her account. He says that damaged their friendship for a time. Given the evidence I have seen of the Council’s actions and the length of time Miss X was without her funds, Mr Z’s account is credible.
- I therefore find fault by the Council caused both Miss X and Mr Z significant distress.
- I also the Council caused Mr X considerable time and trouble in having to chase actions and seek clarification. He should not have needed to approach us in order for the Council to properly explain the basis for its calculations.
- To remedy the injustice caused by fault, the Council will, within one month of the final decision:
- Apologise to Miss X in writing and pay her £500 for the distress its actions caused her;
- Apologise to Mr Z in writing and pay him £750, comprising £500 for the distress its actions caused him and £250 for his unnecessary time and trouble.
- To prevent a repeat of these faults, the Council will, within three months of the final decision review its policies and procedures relating to charging for care, amending them if necessary to ensure they:
- Require it either to pay money owed to an individual directly to that person, or to follow up any payment made via a care home within a month to ensure it has been paid on, taking action as necessary if it has not; and
- Do not make any residential care placement that is in a person’s best interest subject to a third-party top-up fee.
- The Council should also arrange training for relevant staff within three months of the final decision to ensure correct practice is embedded.
- I have upheld the complaint and closed the case as the Council has agreed to provide a suitable remedy for the injustice caused by fault.
Investigator's decision on behalf of the Ombudsman