Summary: Mr X complains that the Council should have disregarded half of his mother’s savings when assessing how much she should contribute to her care costs, because of her financial control over his father. Mr X says half of the savings belongs to his father, and the Council is depriving his father of money that is rightfully his. The Ombudsman does not find the Council at fault.

The complaint

1. The complainant, who I refer to here as Mr X, complains on behalf of his mother and father (Mr and Mrs P). Mr X complains that the Council should have disregarded half of his mother’s savings when assessing how much she should contribute to her care costs. He says half of the savings belongs to his father. He says the Council should have taken into account his mother’s domestic and financial abuse of his father.
2. Mr X says the Council is depriving Mr P of money that Mr X feels rightfully belongs to Mr P.

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The Ombudsman’s role and powers

3. 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)
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)
5. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

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How I considered this complaint

6. Mr P has given written consent for his son, Mr X, to represent this complaint on his behalf.
7. Mrs P has dementia. Mr X has deputyship for Mrs P. I consider that Mr X is a suitable person to represent this complaint on Mrs P’s behalf.
8. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about the complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
9. I considered the relevant legislation, statutory guidance, and policies, set out below.

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What I found

What should have happened

The law and regulations

10. Councils have a duty to charge for residential care. 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. When a council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
11. Local authorities must assess a person’s finances to decide what contribution they should make to their care. The guidance says that a local authority must have regard to the detailed guidance which says how capital and income should be treated. In assessing what a person can afford to contribute a local authority must apply the upper and lower capital limits. The upper capital limit is currently set at £23,250.
12. 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.
13. The guidance says it is important that people pay their fair contribution towards their care and support costs. Councils have power to exercise some discretion when making certain decisions on charging, taking into account individual circumstances.

The Council’s policy

14. The Council has a charging policy for residential and nursing home care placements. This says the Council has the power to exercise discretion when making some decisions on charging, taking into account individual circumstances.
15. The policy says all decisions to exercise discretion require a delegated authoriser’s approval. It says the delegated authoriser must promote the adult’s wellbeing when making decisions. It also says the authoriser needs to balance this discretion with ensuring a person’s assets are not maintained at public expense.

What happened

16. Mrs P has dementia. In 2019, Mrs P moved into residential care. The Council did a financial assessment to see how much Mrs P should contribute to her care costs. At that time, Mrs P had savings over the upper capital limit, so the Council said it expected Mrs P to pay the full cost of her care.
17. Mrs P’s son, Mr X, complained to the Council. He said the Council should treat Mrs P’s savings as joint capital between Mr and Mrs P. Mr X said his mother had financially controlled and abused Mr P, and that any past expenditure was taken from Mr P’s personal funds.
18. The Council had a meeting with Mr X. Mr X asked the Council to apply its discretion and treat all of Mrs P’s savings as joint savings, despite the savings being held in Mrs P’s name alone. The Council considered the evidence Mr X provided about the alleged financial abuse.
19. The Council decided that the evidence provided did not change its original decision. For this reason, the Council maintained that Mrs P should pay the full cost of her care.

Analysis

20. The Regulations and the Council’s policy allow the Council to consider exercising discretion when making certain decisions on charging. I find that the Council considered whether or not to exercise its discretion when deciding how to treat Mrs P’s finances. I find that the Council fully considered Mr X’s argument and his evidence. This is appropriate and is evidence of good practice.
21. The Council ultimately decided, after full consideration, that it would not disregard Mrs P’s finances. This is a decision the Council is entitled to make, and is in line with the law and the Council’s policy. For this reason, I do not find the Council at fault. The Ombudsman cannot question the merits of a decision that is made without fault.

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Final decision

22. I have completed my investigation and I do not uphold Mr X’s complaint. This is because there is no fault.

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Investigator's decision on behalf of the Ombudsman