Summary: There was fault in the way the Council carried out an initial financial assessment and then failed to respond to an email from the complainant. The Council has apologised for these faults which is an appropriate remedy. There is no evidence of fault in the way the Council carried out a financial assessment in April 2019, but the Council should not have sent out a standard financial agreement to Mrs B as it did not apply to her situation. Mrs B has not suffered a significant injustice as a result of this.

The complaint

1. Mrs B complains on behalf of her mother, Mrs C. She says the Council has carried out financial assessments which were incorrect and she disagrees with the outcome of the assessments.

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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 Mrs B. I have considered the information she 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

Law and guidance

5. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) 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.

Capital

6. If a person needs residential care, the Council will assess their capital and income. 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 Guidance gives examples of capital, but says this is not an exhaustive list. The Guidance has a list of capital assets that must be disregarded. Funeral plans are not included in the list of capital that must be disregarded. Funeral plans are not mentioned in the Guidance at all.

Income

8. Even if a person’s capital is below the capital limit and the council is funding their care home fees, they may still need to pay a resident’s contribution. This is a contribution based on their income, not their capital.

Top-up fees

9. The personal budget is the amount required to pay the costs to meet a person’s care needs.
10. Where the Council is funding a person’s placement at a care home, a person can choose a care home which costs more than the personal budget. The difference between the amount in the personal budget and the cost of the more expensive care home is the top-up fee. If the Council is unable to find a care home within the personal budget, then the Council remains responsible for the entire cost including the top-up fee.

Deprivation of assets

11. When undertaking a financial assessment a local authority may identify circumstances that suggest that a person may have deliberately deprived themselves of assets in order to reduce the level of the contribution towards the cost of their care. This is called a deprivation of assets.

What happened

12. Mrs C has been living at the care home since January 2016. She lacks the mental capacity to make decisions about her finances and Mrs B holds a Lasting Power of Attorney. The Council had been paying for Mrs C’s care since January 2017. Mrs C’s husband died in November 2017. Mrs C received an inheritance from his estate and therefore her capital increased. This increase triggered a review of the financial assessment of Mrs C.
13. There had been a previous decision by the Ombudsman that the Council should pay the top-up fee for the care home where Mrs C was living.
14. The Council carried out a financial assessment in January 2018 and said Mrs C was above the threshold for Council funding and was therefore a self-funder. The Council continued to pay the top-up fee.
15. The Council calculated that Mrs C’s capital would fall under the threshold for funding on 5 November 2018. She would become eligible for Council funding on that date but would still pay a contribution.
16. The Council sent an invoice to Mrs B in November 2018 for the reduced amount. Mrs B emailed the Council on 23 November 2018 and said the invoice was wrong as Mrs C’s capital was still above the threshold. She told them she would stop paying the invoices until the error was corrected. The Council did not respond to the email.
17. Mrs B contacted the Council again on 26 February 2019. She said Mrs C’s capital would soon be below the capital threshold and she asked for a financial re-assessment.
18. The Council’s financial assessment officer started a financial assessment over the telephone on 5 March 2019. However, as money had been transferred from Mr C’s estate into different accounts, she had to visit Mrs B so that she could go through the bank statements to carry out the financial reassessment.
19. The first home visit took place on 22 March 2019.
20. A further visit took place on 3 April 2019. The Council officer identified three expenditures:
• Two funeral plans from September 2017 costing £6,000.
• A gift of £1,000 to Mrs B in May 2017 to pay for a holiday.
• Payment of £2,000 to Mrs B in September 2017 for costs related to holding a Lasting Power of Attorney for her parents.
21. The Council informed Mrs B on 17 April 2019 of the outcome of the assessment and said:
• It apologised for the administration error when it first completed the assessment in January 2018 and the incorrect calculation of the date.
• It apologised for the delay responding after Mrs B contacted the Council in November.
• Mrs C’s capital would fall below the threshold on 16 December 2019.
• It was still considering whether the sums of £1,000 and £2,000 were deprivation of assets.
• It said the information about these expenditures had not been provided at the visit in January 2018.
• As Mrs C was a self-funder until December 2019, the Council would discharge Mrs C from their systems and Mrs B would need to make her own arrangements for payments with the care home. Mrs B could choose to continue to pay the invoices to the Council but would have to sign a charging agreement.
22. The charging agreement said Mrs C was a self-funder within the context of the legislation and guidance. Self-funders normally paid the care home directly. In this case, the Council agreed to pay the care home fees and would recover the money from Mrs B. Mrs B had to agree to pay the full cost of the residential placement. If Mrs B failed to make the agreed payments, Mrs C would revert to being treated as a self-funder and the care home would invoice Mrs B directly.
23. Mrs B complained to the Council on 1 May 2019 through her solicitor. I have summarised Mrs B’s complaint and the Council’s responses insofar as they are relevant to the complaint that I am investigating.
24. Mrs B said:
• The Council’s assessment from January 2018 was incorrect and this led to the wrong invoices.
• The Council’s communications with her suggested that she had tried to hide the expenditures that were being investigated. This was not true. The statements showing the transactions were from a bank account which was shown to the assessment team during the initial visit in January 2018.
• She alerted the Council to the fact that the invoices were too low in November 2018 which showed that she was not trying to hide information from the Council. The Council did not respond to this email.
• She would not sign the charging agreement as the Council was responsible for paying the top-up fee.
• The Council’s mistakes had had an impact on Mrs C’s eligibility for attendance allowance. The Department of Work and Pensions said there was an overpayment between January 2017 to April 2017 and imposed a £50 penalty which was later written off.
25. The Council replied on 4 June 2019 and said:
• It admitted the financial assessment of January 2018 was incorrectly calculated. It said there were online access issues and only the latest bank statements were seen because of this. It apologised for the stress and upset it had caused.
• It admitted it had not responded to the email from November 2018 and apologised.
• The full assessment was carried out on 3 April 2019.
• The funeral plan cost would be included in the capital.
• The £2,000 for costs associated with the Lasting Power of Attorney costs would be disregarded as capital.
• The Council would disregard the £1,000 gift as a gesture of goodwill.
• Mrs C would be a self-funder until September 2019.
• There would be no third party top up as the Council would continue to pay the Home and then recover the full cost from Mrs C.
• Mrs C was eligible for attendance allowance while she was a self-funder and the Council had made a referral to the Department of Work and Pensions for the attendance allowance to be reinstated. It was the duty of the person holding a Power of Attorney to keep the DWP updated.
26. Mrs B was not satisfied with this response and wrote to the Council on 15 July 2019. She said:
• She acknowledged that the Council had discretion in the matter but said that there was no clear guidance in the Council’s information leaflet on how funeral plans were considered in the financial assessment. The Council never asked her whether her parents had a funeral plan.
• She did not accept that online access was unavailable during the January visit. She questioned why the assessor then did not request the bank statements rather than completing the financial assessment without this information.
27. In July 2019 the Council said:
• It agreed to amend the information leaflet to include information about funeral plans.
• The financial assessment from January 2018 was incorrectly completed and the Council had already apologised. The officer said IT access kept timing out and further access had to be granted on several occasions which made the officer feel pressured into completing the assessment during the visit. The Council acknowledged that the officer should have asked for the bank statements to be printed so that she could have confirmed the charge at a later date.
• The Council apologised again for the distress caused to Mrs B.
28. Mrs B has explained to me how the error in the financial assessment affected the payments of attendance allowance (AA) to Mrs C. A person who lives in a care home is only eligible for AA if they self-fund their package of care. The effect was:
• In January 2019 the DWP said Mrs C had been overpaid AA and asked her to repay £1153 and a penalty of £50.
• Mrs B wrote to the DWP to explain the situation.
• The DWP reversed the decision in March 2019 and cancelled the request for repayment and the penalty.
• Mrs B wrote to the DWP in March 2019 to ask them to suspend the AA again as Mrs C’s care package would soon be paid by the Council. The DWP stopped the AA.
• The Council’s April 2019 assessment said Mrs C continued to be a self-funder.
• Mrs C wrote to the DWP in May, June and July 2019 asking them to reinstate the AA.
• In August 2019 the DWP repaid the AA from March 2019.

Analysis

29. The Council has upheld Mrs B’s complaint that the assessment of January 2018 was incorrect.
30. I agree that there was fault. The Council miscalculated the date upon which the capital would fall under the threshold for eligibility for Council funding. In addition, the Council officer also failed to properly check the bank statements that Mrs B offered at the visit in January 2018. I accept there may have been IT problems but the office should have requested the printed bank statements to ensure the calculation was correct.
31. The Council has also upheld Mrs B’s complaint that it failed to respond to her email from November 2018 and I agree this was fault.
32. Mrs B has suffered an injustice as a result of the faults as she has had to chase the Council and go through several financial assessments. The fault also caused problems with the payment of the attendance allowance which meant Mrs B had to write several letters to the DWP to resolve the problems.
33. Mrs B was also upset by the comment in one of the Council’s letters which said that the full financial information had not been disclosed to the Council until April 2019. She said this made her feel as if the fault was hers, not the Council’s. I agree that this comment was not appropriate, particularly as the Council had no evidence that Mrs B deliberately hid any information.
34. Mrs C has not suffered a financial injustice as a result of the fault. However, Mrs B says she suffered extreme stress because of the Council’s fault in the assessment. The Council has apologised for the faults in writing and this is an appropriate remedy.
35. The Council has accepted that the £2,000 payment was legitimate and has exercised discretion on the £1,000 gift. I will not investigate those matters further.
36. In terms of the funeral plan, my investigation can only investigate whether the Council considered the facts and followed the correct process when it carried out the assessment.
37. The Council has followed the correct law, guidance and its own policies and it has explained its reasons for including the funeral plan as capital. As there is no fault in the way the Council made this decision and as this is a discretionary matter, the Ombudsman cannot question the merit of the decision.
38. I note Mrs B’s comments that the Council’s factsheets did not include information on the assessment of pre-paid funeral plans. I agree it is good practice to provide as much information as possible in the factsheet. However, the fact that the funeral plan was not included does not mean that the Council could not use its discretion when it considered the funeral plan in its assessment.
39. Mrs B has also complained about the Council’s request that she signs the agreement. My reading of the agreement is that it is a standard agreement aimed at self-funders who have asked the Council to arrange their care in a care home.
40. Mrs C was in an unusual situation as she was over the threshold to be eligible for Council funding, yet received Council funding because of a historic remedy from the Ombudsman about a top-up fee. I agree with Mrs B that the agreement is not appropriate for Mrs C’s situation as it says Mrs B has to pay the entire care home fees which is not the case. However, the Council has confirmed that it will continue to pay the top-up fee and Mrs B has not signed the agreement. Therefore, I am of the view that Mrs B has not suffered a significant injustice as a result of the fault.

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Final decision

41. There was fault in the Council’s actions and the Council has remedied the fault by apologising.

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Investigator's decision on behalf of the Ombudsman