Summary: Mrs X complained the Council gave incorrect advice and incorrectly assessed her father’s contribution towards care charges, causing distress and financial loss. We found the Council gave incorrect advice but we found no fault in its decision making on care charges. We recommended the Council pay Mrs X £300 for distress and act to prevent recurrence.

The complaint

1. Mrs X complains the Council provided incorrect advice and incorrectly assessed her father’s contribution towards care charges. She says this has caused distress, time and trouble, legal costs and impacted her mother’s finances.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We cannot question whether an organisation’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. If we are satisfied with an organisation’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

6. I spoke to Mrs X and I reviewed documents provided by Mrs X and the Council.
7. I gave Mrs X and the Council an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Care charges

8. The Care and Support Act statutory guidance sets out a council’s duties in respect of charging for care.
9. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment.
10. The upper capital limit is currently set at £23,250. Below this level, a person can seek means-tested support from their council. This means the council will undertake a financial assessment of the person’s assets and will make a charge based on what the person can afford to pay.
11. However, in some circumstances, a council may choose to treat a person as if a financial assessment had been carried out. To do so, the council must be satisfied on the evidence provided by the person that they can afford, and will continue to be able to afford, any charges due. This is known as a ‘light-touch’ financial assessment.
12. In the full financial assessment, the person’s capital is taken into account. Where a person has joint beneficial ownership of capital, except where there is evidence that the person owns an unequal share, the council should divide the total value equally between the joint owners and the person should be treated as owning an equal share. Once the person is in sole possession of their actual share, they can be treated as owning that actual amount.

Deprivation of assets

13. Deprivation of assets is where a person has intentionally deprived or decreased their overall assets to reduce the amount they are charged towards their care. This means that they must have known that they needed care and support and have reduced their assets to reduce the contribution they are asked to make towards the cost of that care and support.
14. When undertaking or reviewing a financial assessment a council may identify circumstances that suggest a person has deliberately deprived themselves of assets to reduce the level of the contribution towards the cost of their care. If a council finds this has taken place it may either charge the person as if they still possessed the asset or, if the asset has been transferred to someone else, seek to recover the lost income from charges from that person.

What happened

15. Mrs X contacted the Council in July 2020 as her father’s health had deteriorated and he needed full time care. She held power of attorney for the finances, health and welfare of her father, Mr Y.
16. The Council has provided records of its calls with Mrs X on 10 July. Mrs X told the Council her father would be self-funding as he had over £23,250 in savings and capital. The Council told Mrs X to contact it again once her father’s capital was below the threshold for self-funding of care. In response to enquiries the Council said it did not carry out a financial assessment at that time because Mrs X had said her father was self-funding.
17. Mrs X emailed the Council on 23 July 2020 seeking further advice. She explained her parents’ joint finances including two joint savings accounts each holding more than £23,250. She suggested she could separate the joint accounts into individual accounts so it was simpler to calculate her father’s assets for funding purposes but she wanted advice on whether to do so.
18. Mrs X says she then spoke to the Council by phone. The Council has not provided any records of this call. Mrs X says the Council told her to leave the accounts as they were. Further that she should use one account for her father’s care and leave the other account as his wife’s share. And then contact the Council once the account used by her father fell below the threshold.
19. The Council then emailed Mrs X with reference to its phone call and confirmed she should contact it again once her father’s savings fell below the threshold.
20. In August 2021 Mrs X contacted the Council as the funds in the account used by her father had fallen below the threshold.
21. The Council completed a financial assessment and told Mrs X that her father remained able to fund his own care as he held savings above the upper capital limit.
22. Mrs X disputed this decision with reference to the advice the Council gave her in July 2020. However, the Council upheld its decision.
23. Mrs X’s solicitor then wrote to the Council. They explained they would advise to separate joint accounts into individual accounts where possible when one person went into care, for ease of reference when the council assesses funding. However, Mrs X left the accounts as they were following advice from the Council in July 2020. This meant Mr Y’s wife had inadvertently paid towards his care fees.
24. The Council said it had property assessed the joint savings accounts and took into account 50% of the total as Mr Y’s share. Staff from its Adult Social Care team should not give financial advice and it apologised for this. Mrs X could contact the Ombudsman if she remained unhappy.
25. Mrs X then complained to the Ombudsman that the Council should have carried out a financial assessment in July 2020 based on her father’s finances at that time.
26. I asked Mrs X what she would have done if the Council had not given advice as it did. She said she would have set up individual bank accounts for her parents in July 2020 and asked the Council to carry out a financial assessment in July 2020.
27. I asked the Council to comment on this. It said: Mr Y is entitled to 50% of the monies in the accounts with his wife as these are in joint names. If Mrs X had reviewed these accounts and removed Mr Y’s interest, then this would have triggered a safeguarding concern and been treated as Deprivation of Assets. It would also have reported Mrs X to the Office of the Public Guardian. Because, Mrs X, as the registered Power of Attorney, has a fiduciary duty to act on Mr Y’s behalf, ensuring no deprivation occurs.

Findings

28. Although Mrs X complains of advice the Council gave in July 2020 she has only found this was incorrect within the last 12 months. I therefore consider there is good reason to exercise discretion to consider the complaint.
29. The Council did not carry out a financial assessment in July 2020 because it was satisfied Mr Y had savings above the upper capital limit. This decision is line with the statutory guidance on light touch assessments. I find no fault in the Council’s decision making.
30. Where a person has a joint savings account and is entitled to 50% of monies in the account, a council may assess their finances at any time and find they own 50% of monies in the account. The timing of a council’s assessment would not affect this.
31. The Council carried out a financial assessment in 2021 and took into account Mr Y’s 50% share of monies in savings accounts. It found his capital exceeded the upper limit. The Council decided on the information available and in line with the law. I find no fault in the Council’s decision making.
32. In consideration of Mrs X’s submissions and the corroborating evidence, I accept on balance that the Council gave advice to Mrs X in July 2020 as she refers. The Council accepts it should not have given financial advice. This is fault.
33. Mrs X has outlined the changes she would have made to Mr Y’s finances, had the Council not offered any advice. However, the Council says it would have treated this as deprivation of assets. This means the Council could have recovered the sums deprived and Mr Y and his wife would not have benefitted financially. Therefore, on balance, I cannot say the Council’s fault caused any financial loss. However, I can say Mrs X has suffered distress and uncertainty due to the inaccurate advice. I accept Mrs X also incurred costs on legal advice however she may have been able to seek free legal advice from other bodies. Therefore, I cannot say the Council was directly responsible for this cost. I note the Council has already provided an apology.

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Agreed action

34. To remedy the injustice set out above I recommend the Council carry out the following actions within one month of the date of my decision:
• Pay Mrs X £300 for distress and uncertainty;
• Remind staff in its Adult Social Care Team that they should not give financial advice.
35. The Council has accepted my recommendations.

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Final decision

36. I find the Council gave incorrect advice but I find no fault in its decision making on care charges. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman