Summary: Mrs X complains about failings by the Council about it conducting a financial assessment about her late father’s care needs. We found the Council failed to perform the assessment within a reasonable timeframe and it was at fault for not keeping contact with Mrs X. The Council also made a flawed decision about what assets should be included as capital within the assessment. These faults caused Mrs X an injustice and so we have recommended a number of remedies which the Council has agreed.

The complaint

1. The complainant, who I refer to as Mrs X, is making a complaint for her late father, who I refer to as Mr B. In summary, Mrs X complains about the Council’s responsiveness to completing a financial assessment for Mr B to find out if the Council would meet his care costs. Mrs X says the Council:
1. delayed in completing Mr B’s financial assessment.
2. made incorrect decisions in the financial assessment concerning the inclusion of an investment bond as a capital asset.
3. failed to consider that Mr B should have been eligible for NHS continuing health care in the last few months of his life.
4. failed to use the agreed terms when responding to her formal complaint.
2. Mrs X says these issues have caused her distress and much time and trouble. As a desired outcome, she wants the Council to accept responsibility for its failings. She also says the investment bond should be disregarded from the financial assessment.

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What I have investigated

3. I have investigated the alleged delay by the Council in completing a financial assessment for Mr B. Further, I have assessed the merits of the Council’s decision to include Mr B’s investment bond in its financial assessment. I have also investigated matters concerning the Council’s complaints policy.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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).
6. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended).

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How I considered this complaint

7. I have reviewed Mrs X’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable legislation and policy. Further, Mrs X and the Council commented on my preliminary view before a final decision was made.

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What I found

Background and legislative framework

8. Some people need extra care or support, practical or emotional, to lead an active life. The need for social care may arise when a person becomes frailer with age as one example. A care and support plan is a detailed document setting out what services will be provided by the local authority. It also explains how it will meet the person’s needs, when they will be provided, and who will provide them. A care and support plan should be reviewed regularly by the local authority
9. In circumstances where an adult may have needs for care and support, Section 9 of the Care 2014 places a duty on local authorities to conduct a needs assessment. This is to determine whether the adult does have needs for care and support and if the adult does, what those needs are. Once a needs assessment has been completed, the Care and Support (Eligibility Criteria) Regulations 2014 is used to identify the level of needs which must be met by a local authority. Where a local authority has determined a person has eligible needs, it has a legal duty to meet these needs, subject to meeting the financial criteria.
10. Where a person is assessed as having eligible needs and that person has capital above the upper financial limit, local authorities do not have a statutory duty to meet the individual’s needs.
11. The legal framework for charging is set out in sections 14 and 17 of the Care Act 2014. Any local authority must assess a person’s financial resources to decide whether they should pay for their own care needs, or establish the level of contribution they need to make.
12. The Care and Support Statutory Guidance (CASS) must be followed when assessing charging under the Care Act 2014. The following section describes how investments bonds should usually be treated

Treatment of investment bonds

13. The treatment of investment bonds is currently complex. This is in part because of the differing products that are on offer. Where an investment bond includes one or more elements of life insurance policies, then the value of those rights must be disregarded as a capital asset in the financial assessment.

Notional capital

14. In some circumstances a person may be treated as possessing a capital asset even where they do not actually possess it. This is called notional capital. Notional capital may be capital which:

1. would be available to the person if they applied for it
2. is paid to a third party in respect of the person
3. the person has deprived themselves of in order to reduce the amount of charge they have to pay for their care

15. There are some cases where a person may have tried to deliberately avoid paying for care and support costs through depriving themselves of assets, either capital or income. Where a local authority believes they have evidence to support this, it must consider investigating the issue.

Continuing Healthcare

16. NHS Continuing Healthcare (NHS CHC) is a package of care for adults aged 18 or over which is arranged and funded solely by the NHS. In order to receive NHS CHC funding, individuals have to be assessed by Clinical Commissioning Groups (CCGs) according to a legally prescribed decision-making process to determine whether the individual has a ‘primary health need’.

Chronology of events

17. In April 2020, Mrs X sought financial support from the Council to cover Mr B’s residential care accommodation because he had exhausted his savings.
18. In May 2020, the Council produced a care and support plan for Mr B to establish the level of care he needed. The case was then passed to the Council’s finance team to conduct a financial assessment. This would find out the level of contribution Mr B would need to make towards his own care, if any.
19. In June 2020, Mrs X completed an income and expenditure form for the purposes of the Council conducting a financial assessment. The form indicated Mr B had a small amount of savings in an ISA account and a bond valued at a moderate sum.
20. In July 2020, Mrs X provided the Council a copy of the bond. This was requested by the Council because it needed to ascertain whether the value of the bond would be disregarded from the financial assessment. If so, this would bring Mr B’s capital assets under the threshold for which he would be deemed chargeable for the full cost of his care accommodation.
21. In August 2020, the Council found the bond had an element of life assurance attached to it meaning, in principle, it would be disregarded from the assessment. However, the Council said the bond was purchased in April 2018, after Mr B had entered residential care. This meant the Council undertook an investigation to find out whether there had been a deliberate deprivation of an asset.
22. In September 2020, Mrs X told the Council that money from the sale of her parent’s previous jointly owned property had been used to buy the bond. The Council conceded that because Mrs X had not requested the value of the bond to be disregarded, there was clearly no deliberate deprivation of the asset.
23. In October 2020, Mr B died. Mrs X shortly after contacted the Council to query the financial assessment. The Council issued a condolence letter, but did not provide the outcome of the financial assessment.
24. In November 2020, the Council determined the bond would be deemed a notional capital and would not therefore be disregarded for the purposes of the financial assessment. As such, the Council decided Mr B’s assets went above the threshold which required him to pay the full cost charge of the accommodation from the date of his admission.
25. In January 2021, Mrs X complained to the Council about the time it had taken to complete the financial assessment. She said the process had taken over nine months which worsened the distress and confusion to her and her family. Mrs X also stressed she had still not received a final bill from the Council.
26. In February 2021, the Council responded to Mrs X’s formal complaint. It explained the delay in part was due to it looking into whether there had been a deliberate deprivation of an asset. That said, the Council apologised to Mrs X for the unacceptable about of time it took to complete the financial assessment. It also arranged for the final bill to be issued to Mrs X.

My assessment

Delay in completing financial assessment

27. The Council took around nine months to conduct a financial assessment on Mrs X’s request. The Council has accepted this was unacceptable. It also concluded there was a failure in communication and that it did not keep Mrs X updated on progress. On that basis, the Council was at fault and it has apologised to Mrs X. That said, I consider this matter caused Mrs X serious distress and uncertainty over a prolounged period of time. I do not consider an apology in these circumstances to be sufficient to remedy the impact this fault had on Mrs X. On my recommendation, the Council has agreed to make a financial payment be made to Mrs X to acknowledge the injustice she suffered.

Treatment of the investment bond

28. Normally, if an investment bond has some life assurance attached to it, it will be disregarded from the financial assessment (see paragraph 13). However, the Council included the investment bond in the financial assessment because it considered this to be a notional asset (see paragraph 14). Importantly, a key feature of a notional asset is there has been some form of intentional deprivation of that asset for the purposes of reducing the income in a financial assessment. The Council concluded there was no intention of deprivation in this case, yet it included the investment bond in the financial assessment anyway.
29. I made enquiries of the Council on this issue. I explained the Council’s conclusion, that there was no intention of deprivation, was inconsistent with the definition of a notional asset. The Council later reviewed what happened and accepted there had been fault in the way it included the investment bond. The Council has agreed to remove the bond from the financial assessment and will issue Mrs X a new bill accordingly. It has also agreed to make a financial payment to Mrs X to acknowledge the injustice she suffered.

Complaints process

30. I have reviewed the complaint terms agreed between Mrs X and the Council. This largely focused on the duration of the financial assessment. In my view, the Council’s response deviates marginally from the agreed terms, but ultimately the matters do seem to have been largely addressed. To be specific, the Council concluded the length of time it has taken to undertake the financial assessment has been unacceptable. In any event, I do not consider this inconsistency in the complaints process to have caused Mrs X serious loss, harm or distress. I do not therefore propose to investigate the issue any further.

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Agreed action

31. To remedy the faults and injustice above, the Council has agreed to the following actions within one month of a final decision:

1. Provide Mrs X a written apology for the identified failings and pay her £300 to acknowledge the distress and uncertainty she has suffered.
2. Disregard Mr B’s investment bond from the financial assessment and provide Mrs X a revised bill, in writing.

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Final decision

32. The Council failed to undertake a financial assessment within a reasonable timeframe. Further, it was at fault for not maintaining contact with Mrs X. The inclusion of the investment bond within the financial assessment was flawed and without merit. These faults caused Mr B and Mrs X an injustice and so I have recommended a number of remedies which the Council has agreed to.

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Parts of the complaint that I did not investigate

33. Mrs X says the Council failed to consider that some of Mr B’s care should have been free of charge. This is because she believes he would have been eligible for continuing healthcare towards the end of his life (see paragraph 15). The Council did receive notice that Mrs X had an appointment in December 2019 to discuss continuing healthcare for Mr B, though it says it did not receive any confirmation he was eligible for this.
34. Whether an individual is eligible for continuing healthcare is a decision made by the NHS. That Mr B did not receive this is not therefore an administrative function of the Council and I do not have jurisdiction to investigate this aspect of the complaint. The restriction I describe at paragraph six therefore applies.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman