Summary: We upheld Ms X’s complaint about misleading advice. We did not uphold complaints about a financial assessment or about a social care assessment for her late mother Mrs Y. The Council will apologise and clarify policy on funding live-in care with all front-line social care staff responsible for social care assessments.

The complaint

1. Ms X’s solicitor complained for her about Warwickshire County Council (the Council). She said it:
1. Failed to complete a thorough social care assessment of her late mother Mrs Y, failed to carry out a mental capacity assessment and failed to give accurate information about live-in care
2. Failed to consider money Mr Y paid to fund Mrs Y’s care when completing Mrs Y’s financial assessment and did not accept that money already paid for care should be refunded
3. Delayed in reviewing the assessment and in replying to correspondence.
4. Failed to provide guidance or information about funding a live-in carer
2. Ms X’s solicitor said the Council’s failings meant the family continued to pay for a live-in carer using Mr Y’s money rather than Mrs Y’s as her savings were already below the upper capital threshold of £23,250.

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What I investigated

3. I investigated complaints (a) to (c). The reason for not investigating complaint (d) is at the end of this statement.

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The Ombudsman’s role and powers

4. 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)
5. We provide a free service, but we must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice.

(Local Government Act 1974, section 24A(6), as amended)

6. 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

7. I considered:
• The complaint to us and supporting documents
• The Council’s response to the complaint
• Documents described later in this statement.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

9. A Lasting Power of Attorney (LPA) is a legal document which allows someone to choose one or several people to make decisions when they become unable to do so for themselves. There are two types of LPA:
• Property and Finance – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account.
• Health and Welfare – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.
10. A council must carry out an assessment for any adult with an appearance of need for care and support, care. (Care Act 2014, section 9)
11. Having assessed a person as needing care and support, a council must apply national criteria to decide if a person is eligible for care and support (Care Act 2014, section 13(1))
12. An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs. Councils should give the person an indicative timescale and keep them updated. (Care and Support Statutory Guidance 2014, Paragraph 6.24)
13. Care and Support Statutory Guidance (CSSG) says a council is allowed to take into account its budget and finances, including that it must ensure the funding available to it is enough to meet the needs of the whole local population. It may balance the requirement to meet an individual’s eligible needs with its overall budgetary responsibilities. It can take case by case decisions which weigh up the total costs of different potential options for meeting needs and include the cost as a relevant factor in deciding between suitable options for meeting needs. (Care and Support Statutory Guidance, 10.27)
14. A personal budget is a statement which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, section 26)
15. An indicative personal budget is a rough idea of the money needed to buy care to meet the person’s eligible needs based on local market averages.  It is an estimate that can go up or down in individual cases depending on the actual cost and availability of services.  At the time of Mrs Y’s assessment, the resource allocation system the Council used to work out indicative personal budgets had:
• A series of questions with points assigned to each answer
• Points assigned to each response in the questionnaire
• A ‘pounds per point’ calculation that converted the points into a sum of money known as a ‘indicative personal budget’.  There was a software package that produced the provisional figure automatically once the completed assessment form is entered on the computer.
16. Councils have the legal power to charge for care. If they do so, they must carry out an assessment to determine how much the person should pay (a financial assessment).
17. The Care and Support (Charging and Assessment of Resources) Regulations 2014) (the 2014 Charging Regulations) set out how a council is to financially assess adults requiring care and support. They say:
• If a person needing care and support at home has capital over £23,250 (known as ‘the upper capital limit’) a council may treat them as being able to afford the full cost of their care (Regulation 12(2))
• Where an adult and one or more other persons are beneficially entitled in possession to any capital asset, except land, each person is treated as if they were entitled to an equal share of the whole beneficial interest, unless the council is satisfied that the adult is entitled to a lesser or greater share. (Regulation 24)
18. Annex B of CSSG explains capital includes savings in a savings account. It says:
• Where a person has joint beneficial ownership of capital, the total value should be divided equally between the joint owners, except where there is evidence a person owns an unequal share.
• Where ownership of capital is disputed, a local authority should seek evidence to prove where ownership lies.

What happened

19. Mr and Mrs Y lived together in a house they owned. They both had dementia, although Mrs Y’s dementia was more advanced and was diagnosed several years before Mr Y’s.
20. In 2018, Ms X arranged a live-in carer for Mrs Y and paid for this from Mrs Y’s income and capital. Mrs Y appointed Ms X and another daughter as her lasting power of attorney (LPA) in February 2019. The LPAs were registered in May.
21. Ms X contacted the Council at the start of March 2019 to ask for advice and an assessment for Mrs Y. She said Mrs Y’s savings were about £30,000. The Council placed Ms X on a waiting list for a social care assessment.
22. A social worker carried out a social care assessment in June. The assessment noted Mrs Y was eligible for care and support. The assessment said:
• Mrs Y had a private live-in carer who supported her with personal care, meals, eating and drinking and toileting and provided night-time care as Mrs Y was up several times each night.
• Ms X said her parents had a joint account with about £80,000 and that Mrs Y had spent her half of this money and was using Mr Y’s savings to pay for her care.
• A financial assessment would be required.
• A care package of four visits a day was an option, but Mr Y could not manage the night-time support and so Mrs Y would be at risk. Residential care was also an option which would meet Mrs Y’s night-time care needs and 24-hour care needs, but the family did not want Mr and Mrs Y to be separated.
• A direct payment was also an option at the Council’s rate for residential care. The family would have to pay the shortfall if they wanted live-in care.
• The Council did not fund a live-in care service.
• Mrs Y lacked mental capacity to make decisions about her care and support.
• Her indicative weekly personal budget was £395.
23. The case notes indicated the Council agreed to fund a direct payment at £525 which the family could use towards the cost of the live-in care. The Council told me this was the rate it usually paid for residential care. However, this funding was subject to Mrs Y’s financial assessment.
24. Ms X wrote to the finance team at the end of June saying Mrs Y’s savings were below the upper capital limit and she was using Mr Y’s funds to pay for her mother’s care as she could not access Mrs Y’s account in her sole name and so it was necessary to pay for her care from Mr Y’s own money and from jointly owned money. Ms X said Mrs Y’s sole account balance was currently £15,000 and her care costs since November 2018 were £42,000.
25. The Council carried out a financial assessment and decided Ms X had capital over £23,250.
26. At the end of August 2019, Ms X’s solicitor complained about the social care assessment, asked for a review of that assessment and for a review of Mrs Y’s personal budget and said:
• The family did not accept residential care was appropriate for Mrs Y and considered it was in her best interests to remain in her home with Mr Y.
• The assessment did not address the impact of a move into residential care on Mrs Y’s wellbeing (or on Mr Y’s wellbeing). They did not want to be separated.
• The social worker said it was the Council’s policy not to fund live-in care.
27. The Council allocated Mrs Y’s case to a different social worker to conduct a review. This did not take place. Mrs Y then became ill in October and went into hospital.
28. Ms X’s solicitor chased the Council for a response to the complaint at the start of November. Mrs Y’s health had declined and she was in a hospice. The solicitor said the family had been paying privately for her care until she went into hospital, although she was under the upper capital limit.
29. Mrs Y died in November.
30. Ms X’s solicitor wrote to the Council at the end of March 2020. She was winding up Mrs Y’s estate. The solicitor noted the review of Mrs Y’s social care assessment never took place and said Mrs Y’s savings would have hit the upper capital limit in April or May 2019. The solicitor asked for a review of the financial assessment and for a refund in line with the correct application of the charging rules.
31. The Council carried out a review of the financial assessment. Its letter of 10 July 2020 said:
• It was sorry for the delay
• Mr and Mrs Y’s joint bank account was capital within the definition in CSSG.
• Mrs Y had joint funds and funds in her own name only. There was no trust or legal document indicating an unequal share of the joint accounts. So the Council had decided in line with CSSG to treat the couple as having an equal share of funds in joint accounts
• Mrs Y’s capital in June 2019 was £34,500. This included a half share of the funds held in three joint accounts and a joint bond.
• There was no evidence of a debt having to be secured by an asset owed by Mrs Y to Mr Y other than an assertion. So it was appropriate to consider Mrs Y’s capital based on the actual value including half of joint assets.
32. Ms X’s solicitor wrote to the Council at the start of August saying it had not responded to all the issues raised in correspondence at the end of March (see paragraph 30). The solicitor said Mrs Y’s care fees had been paid for despite her savings being below the upper capital limit. Mr Y had paid these on her behalf, her estate had reimbursed him. Receiving no response, the solicitor wrote to the Council again at the end of August saying the family intended to ask us to investigate.
33. The Council replied at the end of September saying it had addressed the complaint about the financial assessment through an appeal (see paragraph 31) and asked if they wanted to use the complaints procedure to deal with issues about the social care assessment. Ms X’s solicitor said not and that she was referring the complaint to us.
34. The Council told us:
• The social worker discussed various options during the social care assessment including a direct payment and residential care.
• Mrs Y’s needs could be met in a care home and so the Council gave the equivalent funding as a direct payment (subject to the normal financial assessment).
• The social worker was wrong to say the Council did not fund live-in care.

Was there fault and if so, did this cause injustice?

The Council failed to complete a thorough social care assessment of her late mother Mrs Y, failed to carry out a mental capacity assessment and failed to give accurate information about funding a live-in carer

35. I am satisfied with the Council’s assessment of Mrs Y’s social care needs. The assessment included the family’s views and wishes on behalf of Mrs Y. Ms X was her attorney and was fully involved in the assessment. The Council was entitled to meet a person’s eligible needs in various ways and was also entitled to take into account its budget. There was no fault in the assessment which was in line with paragraph 10.27 of CSSG.
36. The Council was not required to carry out a mental capacity assessment because Ms X was Mrs Y’s attorney for health and welfare and finances. This meant Ms X was authorised to make decisions for Mrs Y in her best interests. There was no fault in not completing a mental capacity assessment.
37. In addition, because Mrs Y had capital above the upper limit, the Council was not a decision-maker in terms of care placements/options/funding and so it was not required to make any best interests’ decisions about Mrs Y’s care.
38. The social worker’s statement that the Council did not provide funding for live-in care was inaccurate because the Council confirmed to me it was not council policy. Giving incorrect information was fault. This caused Ms X avoidable confusion.

The Council failed to consider money Mr Y paid to fund Mrs Y’s care when completing Mrs Y’s financial assessment and did not accept that money should be refunded

39. The Council was entitled to treat the jointly held savings in the way that it did. Regulations 12 and 24 of the 2014 Regulations are clear that unless there is evidence to the contrary, councils are entitled to assume an equal share. Ms X provided no evidence to the contrary, other than an assertion of a lesser share based on the cost of previous care. There was no fault in the Council considering this information and choosing to reject it.

The Council delayed in reviewing the assessment and in replying to correspondence

40. The Council did not carry out a review, however, Mrs Y also went into hospital within a few weeks of Ms X’s solicitor’s request for a review. On balance, the delay was not long enough for me to find fault. Given there was care already in place and an appropriate decision that Mrs Y had enough capital to fund her own care, the review would not have been a priority one in any event.
41. There was a delay by the Council in replying to Ms X’s solicitor’s correspondence about the social care and financial assessments. The Council’s responses however, addressed the issues and apologised for the delay. This was an appropriate remedy for the injustice and no further action is required on this point.

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Agreed action

42. The Council will, within one month:
• Clarify with all front-line social care staff carrying out social care assessments the council’s policy on funding live-in care. This will minimise the chance of staff giving misleading information to families.
• Apologise to Ms X for the confusion caused by incorrect information about the policy on live-in care.

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Final decision

43. I have upheld Ms X’s complaint about misleading advice. I have not upheld other complaints about a financial assessment or about a social care assessment for her late mother Mrs Y. The Council will apologise and clarify policy on funding live-in care with all front-line social care staff responsible for social care assessments.
44. I have completed the investigation.

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Parts of the complaint that I did not investigate

The Council failed to provide guidance or information about funding a live-in carer

45. Mrs X also complained about advice and information given during the social care assessment. I have not investigated this complaint because Mrs X told me she sought independent financial advice following the Council’s suggestion that her parents consider equity release to fund a live-in carer. As a result of the financial advice they decided not to go ahead. As there is no fault or injustice, I am not investigating this complaint.

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Investigator's decision on behalf of the Ombudsman