Summary: The Council failed to properly assess for services which resulted in Mr D making an uninformed decision about residential care. To remedy Mr D’s injustice the Council has agreed to apply a 12 week property disregard in his assessment of residential care charges.

The complaint

1. The complainant, whom I refer to as Mr C, complains on behalf of his father in law, whom I refer to as Mr D. Mr C complains the Council failed to properly assess Mr D for care services and advise him of the financial implications of going into a care home. Mr C says that as a result Mr D has not had the benefit of a 12 week property disregard in his assessment of 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)
4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)

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How I considered this complaint

5. I spoke with Mr C and considered the written information he provided. Based on this information I made enquiries of the Council. I then considered: -
• the Council’s response;
• the Council’s information leaflet about charging;
• Care Act 2014;
• Care and Support Statutory Guidance 2014;
• Care and Support (Charging and Assessment of Resources) Regulations 2014.
6. I have written to Mr C and the Council with my draft decision and considered their comments.

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What I found

Background information

7. Mr D was the main carer for his wife, Mrs D. Mrs D went into a care home for respite care. While Mrs D was in the care home Mr D had a stroke and was admitted into hospital.

What happened

8. On 6 November 2018 Mrs C, Mr D’s daughter, spoke with a Social Care Assessor, SCA. The Council records Mrs C saying Mr D had capacity and wanted to live with Mrs D in the care home. Mrs C asked about help with finances but believed her parents would be self-funding as they owned their own property. The SCA records that she would make a referral to FAB, a financial assessment team.
9. Mrs C disputes the contents of this conversation. She says she queried Mr D’s capacity and did not know how residential care was funded.
10. On 9 November 2018 the SCA met with Mr D. Mr D confirmed that he wanted to go into the same care home as his wife. Mr D told the SCA that he had £28,000 in joint savings and property. The SCA records that Mr D did not want to sell his home but would self-fund if it meant he could live with his wife. The SCA told Mr D the Council would not fund a placement for him as he did not have any night-time needs and could return home with a package of care. The SCA says she got this information from health records. The SCA said Mr D would have to fund his care and the Council would complete a new financial assessment when it reassessed Mrs D’s need for residential care.
11. On 9 November 2018 the SCA spoke with Mrs C and repeated what she had told Mr D. She also left a Care Advice Line leaflet for Mrs C to read. Mr D moved into the care home on 12 November 2018. On 28 November Mr C raised concerns about Mr D’s discharge and the funding of his placement.
12. The Council started a social care assessment on 22 January. On 11 February 2019 the Council assessed Mr D as meeting the criteria for residential care. This was after the care home kept a diary of Mr D’s night-time needs.
13. The Council says Mr D had capacity and decided to self-fund his placement. It says it did not complete a full assessment because whilst the SCA was gathering information Mr D decided to move to the care home on a self-funding basis. It says the family were aware of the funding implications for the care home as it told Mrs C that it would not fund a placement and left an advice leaflet which she said she would read.
14. Mr C disputes this and says the family were not aware of the funding implications and had asked the Council for advice on several occasions.
15. The Council has not applied the 12 week disregard to Mr D’s portion of the property as it says Mr D moved into the care home on a self-funding basis on 12 November 2018. It says the qualifying 12 week period ran from this date to 3 February 2019. The Council says it assessed Mr D as eligible for services from 11 February 2019 which passed the end of the 12 week property disregard period.
16. The Council has however applied the 12 week property disregard on Mrs D’s half of the property from 29 December 2018 to 22 March 2019. This is based on Mrs D’s eligibility for permanent care from 29 December.

What should have happened

17. The Mental Capacity Act 2005 says that a person is presumed to have capacity to make a decision unless it is established that he or she lacks capacity.
18. The Care and Support Statutory guidance says,
19. “6.12 Eligibility determinations must be made on the basis of an assessment, and cannot be made without having first carried out an assessment. Once an eligibility determination has been made, and the local authority has determined whether it will meet the person’s needs (whether eligible or not), it must then carry out a financial assessment if it wishes to charge the adult and confirm that the adult is ordinarily resident in the authority. The eligibility determination cannot take place until an assessment has been completed, except in cases where the local authority is meeting urgent needs. The financial assessment may in practice run parallel to the needs assessment, but it must never influence an assessment of needs. Local authorities must inform individuals that a financial assessment will determine whether or not they pay towards their care and support, but this must have no bearing on the assessment process itself.”
20. 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”.
21. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. Where a person has capital in a property a council can disregard the value of that property when assessing a person’s charges for 12 weeks. This is known as a 12-week property disregard. Care Act 2014, Annex B para 45 says a council must:-
22. “disregard the value of a person’s main or only home for 12 weeks in the following circumstances:
23. (a) when they first enter a care home as a permanent resident
24. (b) when a property disregard other than the 12-week property disregard unexpectedly ends because the qualifying relative has died or moved into a care home”
25. The Council’s information leaflet says the property disregard will occur,
26. “during your first 12 weeks in permanent care to give you time to make decisions about what you are going to do with your property”
27. Paragraph 34 Care and Support Statutory Guidance 2014 says the Council should disregard the value of a person’s property where it remains occupied by a partner 60 years or over.

Is there fault causing injustice?

28. The Council says Mr D had capacity and made the decision to self-fund his placement. There is nothing to suggest Mr D lacked capacity to make decisions and therefore I do not consider the Council acted contrary to the Mental Capacity Act. While I appreciate Mr D’s family wanted to be present at the meeting and that it is usually helpful to have family involvement when assessments take place this is not always possible. The SCA did contact Mrs C and while the content of the conversation is disputed; updated the family.
29. The Council says it did not complete a full care assessment because whilst the SCA was gathering information Mr D decided to move to the care home on a self-funding basis. It says the family were aware of the funding implications as it told Mrs C it would not fund a placement and left an advice leaflet which she agreed to read.
30. Mr D decided to self-fund his placement because the SCA said he was not eligible for residential care. However, the Council reached a decision on Mr D’s eligibility for residential care without completing a full assessment. This is contrary to the Care and Support guidance and is fault.
31. This means Mr D’s decision was based on flawed information. The Council also did not, as agreed, make a referral to the FAB team which may have alerted the Council to the family’s concerns at an earlier date.
32. The records show that just after two weeks of Mr D moving to the care home, on 28 November 2018, his family raised concerns about his discharge. The Council did not start a re-assessment of Mr D until 22 January 2019. It assessed Mr D as eligible for residential care on 3 February. I consider the Council delayed in completing the assessment.
33. Where the Ombudsman has found fault causing injustice its remedy should as far as possible put the person affected, in this complaint, Mr D, back in the position they would have been in but for the fault identified. I am unable to say for certain the Council would have assessed Mr D eligible for residential care in November 2018. However, as the Council assessed Mr D as eligible for residential care a short time after; on balance I consider it more likely than not Mr D would have been eligible for residential care, had the Council completed a full assessment in November 2018.
34. In addition, it appears that until Mrs D became a permanent resident on 29 December 2018, she was still an “occupant” of the family home. But for the fault identified above, the Council would therefore have had to disregard the full value of the property from November 2018 until 29 December. The 12-week property disregard for Mr D would have started on the same date as Mrs D, 29 December.
35. Mr C complains the SCA was not qualified to give financial advice. It is not unusual for social workers to provide general financial advice. In this instance however the SCA based her advice on a flawed assessment of need.

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Agreed action

36. I have found fault causing injustice. The Council has agreed to take the following actions to remedy the complaint: -
1. apologise to Mr D for the failures I have identified in this statement of reasons;
2. disregard the value of Mr D’s property from the date he went into the care home until 29 December;
3. apply a 12 week property disregard on Mr D’s property from 29 December in his assessment for charges;
4. after the Council has assessed Mr D’s charges based on this remedy it should reimburse Mr D for any payments he has made in excess of his assessed charge;
5. remind staff about the importance of completing assessments before making decisions on eligibility for care services;
6. remind staff about making referrals to FAB and other teams or, advising families if this is no longer necessary.
37. The Council should complete (a) within one month of the final decision (b),(c) and (d) within two months of the final decision and (e)&(d) within 3 months of the final decision.

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Final decision

38. For the reasons set out above I consider there was fault by the Council which caused Mr D injustice. I have now completed my investigation and closed the complaint based on the agreed action above.

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Investigator's decision on behalf of the Ombudsman