West Berkshire Council (20 005 738)

Category : Adult care services > Assessment and care plan

Decision : Not upheld

Decision date : 17 Mar 2021

The Ombudsman's final decision:

Summary: Mrs X complains the Council has failed to deal properly with Mrs Y’s financial assessment (leaving her to fund her own care) and failed to consider whether she should be referred for a full assessment for NHS Continuing Healthcare. We have discontinued the investigation as the Council has withdrawn its financial assessment so it can reconsider its decision. Mrs Y’s family has now applied for NHS Continuing Healthcare.

The complaint

  1. The complainant, whom I shall refer to as Mrs X, complains the Council has failed to deal properly with Mrs Y’s financial assessment and failed to consider whether she should be referred for a full assessment for NHS Continuing Healthcare.

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The Ombudsman’s role and powers

  1. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

  1. I have:
    • considered the complaint and the documents provided by Mrs X;
    • discussed the complaint with Mrs X;
    • considered the comments the Council has provided in response to my enquiries; and
    • shared a draft of this statement with Mrs X and the Council, and invited comments for me to consider before making my final decision.

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What I found

What happened

  1. Mrs Y lived abroad with her daughter, Mrs Z, for eight years until early 2020 when she was 101. Until then Mrs Z had been her carer but she could no longer fulfil that role after breaking a hip. Mrs Y moved back to the UK to live in a care home. Mrs X says Mrs Y had a couple of short stays in care homes while abroad, to provide respite for her daughter. She says this was not a long-term prospect as she does not speak the language of the county her daughter lives in. She says although Mrs Y paid for these stays, she claimed the money back from local government abroad.
  2. After she returned to the UK, Mrs Y applied to the Council for funding to help pay for her care home.
  3. In May 2020 the Council wrote to Mrs Z with the outcome of its financial assessment. It said it was treating Mrs Y as if she still had £101,250 which she had gifted to Mr X in September 2018, following the sale of a property she had owned in the UK. It said its decision reflected the fact that in 2018 Mrs Y had intended to return to the UK to live and she had received care and support from local government abroad. It said Mrs Y would have to pay her own care homes fees as it considered she had capital over £23,250 (the threshold under which someone becomes eligible for council funding). It advised Mrs Z to have her mother’s enduring power of attorney registered with the Court of Protection, as she said her mother had dementia and some confusion. It also advised her to take independent financial and legal advice.
  4. Mrs Z appealed the Council’s decision.
  5. When the Council replied to the appeal in June, it said the decision to include the gifted money (£101,250) in the financial assessment was correct. It noted Mrs Z had said:
    • the plan had been to sell her home and buy a property in the UK for all three generations to live in (Mr & Mrs X, Mrs Y and Mrs Z);
    • Mrs Y had lived with her for eight years before her fall;
    • after selling her property in August 2018, Mrs Y gave £102,250 to Mr X to help buy his own property in September 2018;
    • Mrs Z had put her property on the market in December 2018.
  6. The Council said it would have expected Mrs Z to put her property on the market at the same time as Mrs Y, if the plan had been to buy a property together. It said its decision was in line with its Adult Social Care Charging Policy and the Department of Health’s Care and Support Statutory Guidance.
  7. Since November 2020 Mrs Z has had power of attorney for her mother’s property and financial affairs.
  8. As Mrs Y did not pay her care home fees, the Council used its safeguarding powers to fund her placement at the care home. This was to protect her from having the placement terminated.
  9. On 29 January 2021 the Council told Mrs Z it was placing Mrs Y’s account for the care home fees on hold as her complaint was ongoing. By this time Mrs X had complained to the Ombudsman and I asked it to provide information for my investigation.
  10. In responding to my request for information, the Council says there are further issues it needs to consider over its decision to include the gifted monies within Mrs Y’s financial assessment. It has therefore withdrawn its decision and will make a new decision, having made “further enquiries to be able to do this”. With regard to the assessment for NHS Continuing Health Care, the Council says Mrs Y’s family asked the NHS about this and should take it up with the NHS if it has not actioned the request.

Are there grounds to continue the investigation into this complaint?

  1. There are no grounds to continue the investigation into this complaint as:
    • the Council has withdrawn its financial assessment and will reconsider its decision on including the gifted money as Mrs Y’s capital;
    • Mrs X will be able to complain again if she disagrees with the Council’s decision;
    • the Council is already funding Mrs Y’s placement in the care home, so it is not under threat;
    • it seems unlikely Mrs Y would have been eligible for NHS Continuing Healthcare when she moved to the UK in 2020, as she had been living at home with her daughter before that and it was a change in her daughter’s circumstances which prompted the move, rather than a decline in her own condition;
    • Mrs Y’s family has now contacted the NHS about her eligibility for NHS Continuing Healthcare.

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Final decision

  1. I have discontinued the investigation so the Council can reconsider its decision.

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Investigator's decision on behalf of the Ombudsman

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