Summary: Mr B complained the Council completed a financial assessment for his mother, Mrs C when she lacked capacity and failed to consider that he had applied to the Court of Protection. Mr B also says the Council should have included Mrs C’s rental obligations in her financial assessment. There was no fault in how the Council handled the financial assessment or how it reached its decision on Mrs C’s rental obligations.

The complaint

1. The complainant, whom I shall refer to as Mr B, complains on behalf of his late mother, Mrs C. He says the Council unlawfully conducted a financial assessment when his mother who lacked capacity. Mr B also says the Council should have included Mrs C’s rental obligations when conducting the financial assessment.
2. As a result, Mr B says the Council did not consider his mother’s wishes or feelings about her financial obligations which caused anxiety, distress, and financial loss.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), 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)
7. 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

8. As part of my investigation, I have:

• considered the complaint made by Mr B on behalf of Mrs C and the Council’s responses;
• considered the Council’s responses to my enquiries; and
• considered the relevant law and guidance.
• I have not spoken to Mr B’s sister Mrs D, who I refer to below, as I am satisfied I do not need to do so to reach a decision.

9. I have given Mr B and the Council the opportunity to comment on my draft decision.

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What I found

Law and guidance

The Care Act 2014

10. The Care Act states councils have discretion to charge people for the care they receive. If a council decides to charge for care, it must complete a financial assessment.
11. Councils can consider both capital and weekly income when completing financial assessments. If a person needs care to stay in their own home, the means test will not include the value of their property.
12. Persons who have over £23,250 of eligible capital will be expected to pay for the full cost of their care home fees. However, once their capital has reduced to less than £23,250, they only have to pay an assessed contribution towards their fees.

The Care and Support Statutory Guidance

13. The Care and Support Statutory Guidance (The Guidance) Section 8.9 and 8.18 says at the time of the financial assessment the local authority should establish whether the person has capacity to take part in the care plan and financial assessment.
14. The Guidance says in Section 8.18 If the person lacks capacity the local authority must find out if the person has any of the following as they will need to be consulted:

• Enduring Power of Attorney (EPA);
• Lasting Power of Attorney (LPA) for property and affairs;
• Lasting Power of Attorney (LPA) for health and welfare;
• Property and Affairs Deputyship under the Court of Protection; or
• Any other person dealing with that person’s affairs (e.g. someone who has been given appointee-ship by the Department of Work and Pensions (DWP) for the purpose of benefits payments).

What happened

15. Mrs C and her son Mr B lived together and were joint tenants after signing a two-year tenancy agreement in June 2019. They were each responsible for half of the rent.
16. The Council completed a Mental Capacity Assessment (MCA) with Mrs C where Mr B was present in February 2020. The Council said Mrs C lacked capacity to decide about her care and accommodation. Mr B and his siblings all held lasting power of attorney for the health and wellbeing of Mrs C but not for financial matters.
17. In March 2020 Mrs C’s health deteriorated. After spending time in hospital, she moved to residential care, where the Council completed a further MCA.
18. In April 2020 the Council did a financial assessment with Mrs C’s daughter, Mrs D who was her DWP appointee at the time.
19. The Council says it had spoken to all of Mrs C’s children while it assessed her. The Council says it first spoke with Mr B who suggested his sister Mrs D was the DWP appointee and had previously dealt with financial matters. In assessing Mrs C, the Council decided that it would not include Mrs C’s rental contract in her financial assessment. This meant Mr B would either have to pay Mrs C’s share of the rent or negotiate a new or sole tenancy agreement. Mr B says this was unfair and did not take his mother’s obligations or the tenancy agreement she had signed into consideration.
20. The Council’s notes say that both Mr B and Mrs D spoke with the Council about Mrs C’s rental obligations. They questioned why the Council had not included this in Mrs C’s financial assessment and asked what legislation the Council used to undertake the financial assessment.
21. The Council records that it explained to Mr B and Mrs D that while it had considered Mrs C’s rental contract, it would not include it in her financial assessment. The Council said that once Mr B and Mrs D received a copy of Mrs C’s financial assessment they could write in with their comments and this would be passed to a manager for consideration.
22. The Council completed a further MCA with Mrs C in May 2020.
23. Mr B contacted the Council and told it that he had sought legal advice. He explained that no one held a power of attorney to deal with Mrs C’s finances. He disagreed with the Council’s decision not to include Mrs C’s rental obligations and provided the Council with a copy of the tenancy agreement.
24. Mr B asked the Council to reconsider Mrs C’s financial assessment to include Mrs C’s rental obligation under the tenancy agreement she had signed.
25. The Council conducted a reassessment of Mrs C’s finances in September 2020.
26. Throughout May to November 2020 the Council was in contact with both Mrs D and Mr B. It sought updates about the progress of an application to the Court of Protection.
27. In January 2021, Mr B and his brother Mr F told the Council the Court of Protection had appointed them as joint deputies to manage Mrs C’s property and financial affairs.
28. In January 2021 the Council received a complaint from Mrs C’s sons Mr B and Mr F. Both complained the Council had undertaken a financial assessment knowing Mrs C did not have capacity. They said that the Council should not have used Mrs D to complete the assessment and said she had no authority to manage Mrs C’s finances. Mr B and Mr F said the financial assessment was unlawful and had not properly considered Mrs C’s financial obligations.
29. The Council replied to the complaint and said:

• Mrs D was recorded as Mrs C’s DWP appointee when it undertook the financial assessment;
• it had taken advice on the tenancy issue and noted Mr B should have told the landlord of the change to Mrs C’s circumstances, allowing the tenancy to be amended to a sole tenancy;
• it had decided to allow a 28-day discretionary disregard to allow Mrs C’s rental obligation to be included in her financial assessment; and
• it felt the 28-day disregard gave Mr B enough time to make changes to the tenancy agreement.

30. Mr B disagreed with the Council and asked to appeal its decision. He said the Council had no right to assess Mrs C’s financial affairs. He also said the tenancy agreement could only be amended or ended if Mrs C wished to do so. He told the Council it was unclear whether without his mother’s contribution he would be solely responsible for the rent of the property.
31. The Charging Appeals Panel considered Mr B’s appeal in February 2021.
32. The Council told Mr B his appeal had not been upheld. On reviewing the evidence presented and available it decided;

• the Council had been aware of a pending Court of Protection Application; but Mrs D was Mrs C’s DWP appointee and had dealt with financial queries since August 2019;
• Mrs D dealt with Mrs C’s day-to-day funds and benefit claims. The Council could use her to complete Mrs C’s financial assessment; and
• there was no mention of Mr B being unhappy with Mrs D completing the financial assessment forms representing his mother in a previous email dated April 2020.

33. On the tenancy agreement the panel decided:

• there was a clause in the standard short hold tenancy agreement allowing Mrs C to end the agreement in accordance with the procedure;
• the onus was on Mr B to ask for a new tenancy agreement in his sole name;
• Mrs C could not be responsible for living costs that she was not benefitting from; and
• the Council had already applied a discretionary 28-day disregard for Mrs C’s rental obligations.

34. The panel said the Council had taken legal advice and had relied on this when making its decision.
35. The Council changed an invoice to include Mrs C’s rental obligations for 28 days between April and May 2020.
36. Mr B complained to the Ombudsman on behalf of Mrs C in March 2021. He questioned the Council’s diligence and noted its appeal response had named an incorrect person as Mrs C’s appointee and felt this showed a lack of competency.
37. Mrs C sadly passed away in August 2021.

Analysis

38. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. Our role is to consider if there was maladministration or service failures by the Council. We cannot criticise a Council’s decision unless there is fault in the way it reached its decision.

The Council’s financial assessment

39. The Guidance states that where a person lacks capacity the Council should find out if any person is dealing with their affairs. In this case the Council’s notes say it involved and corresponded with all of Mrs C’s family at various stages of Mrs C’s residential care and assessment. The Council spoke with Mrs D to complete Mrs C’s financial assessment. Mrs D was Mrs C’s DWP appointee. The Care Act is clear that Mrs D could give details of Mrs C’s financial obligations.
40. Although Mr B was in process of applying for deputyship from the Court of Protection, at the time of the financial assessment in April and reassessment in September 2020 this was not yet in place. The Council completed the financial assessment and did not recover any money from Mrs C until the Court of Protection named the deputies.
41. I recognise the Council did name the wrong person as being Mrs C’s appointee in its appeal response, however I do not find fault with the Council’s letter, this was a minor error contained in paperwork that has not been repeated in any of the documentation that I have seen.

Was the Council’s decision not to include Mrs C’s rental commitment in its financial assessment wrong?

42. The Council used its discretion to allow for Mrs C’s rental obligation in her financial assessment for the 28 days on her entering residential care. The Council’s notes and correspondence with Mr B show it considered his representations. It also sought legal advice alongside advice from the National Association of Financial Assessment Officers. While it recognised the tenancy maybe unaffordable for Mr B alone, the Council was within its rights to decide Mrs C should not pay for something she was not benefitting from.
43. The Council considered all available information and has exercised its discretion without fault, therefore I cannot criticise the Council for reaching the decision it did.

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Final decision

44. I have completed my investigation with a finding of no fault by the Council.

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Investigator's decision on behalf of the Ombudsman