Summary: Ms C complains the Council failed to properly consider insurance premiums in a financial assessment and delayed in completing an assessment for her father’s care. The Council is at fault for failing to assess and provide a personal budget to Mr D. There is however no fault in the way the Council has assessed Mr D’s charge for residential care. To remedy the complaint the Council has agreed to apologise to Ms C, make a symbolic payment to her for her avoidable time, trouble, and distress. It will also review its policies and provide staff training about the duty to assess and provide a personal budget.

The complaint

1. The complainant who I refer to as Ms C complains on behalf of her father who I call Mr D. Ms C complains the Council:-
1. delayed in assessing Mr D’s needs;
2. failed to follow up on safeguarding and Deprivation of Liberty Safeguard (DoLS) outcomes;
3. failed to adequately assess Mr D’s contribution for care, in particular an added allowance to cover life insurance premiums;
4. failed to provide Mr D with a personal budget;
5. failed to properly consider whether a top-up payment was necessary.
2. As result of these failures Ms C says she has had time, trouble, and frustration in pursuing the correct outcome for her father both financially and for his care. Ms C says Mr D has financial loss from the Council’s assessment of charge.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I considered information Ms C provided. I made enquiries of the Council and considered its response. I also considered:-
• Care Act 2014 and the associated Care and Support Statutory Guidance;
• care records and complaint correspondence.
6. Ms C 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

Background information

7. Mr D has dementia and health problems which affect his ability to self care. Ms C and her family cared for Mr D for several years. Following a hospital stay in the first part of 2020 Mr D went into a care home. At the time Mr D had more than £23500 in savings and funded his own care.

What should have happened

Care assessments

8. Section 9 Care Act 2014 says a Council must carry out an assessment where it appears a person has a need for care and attention. The duty to assess a person applies regardless of their finances. The Care and Support Statutory Guidance says everyone must receive a personal budget as part of the care and support plan if the local authority is meeting their needs, either because the needs are eligible needs or because it has chosen to meet them.
9. People should be given an indicative budget at the start of care planning; this is adjusted when it becomes clear how the needs will be best met. The Council must offer at least one care home within the personal budget which will meet a person’s needs. If a person chooses a care home which is more expensive than their personal budget a family member can agree to pay the difference by way of a top-up fee.

Financial assessments

10. Regulation 15(2) Adult Social Care (Charging) Regulations 2014 says a council can where a person has “needs for care and support other than the provision of accommodation in a care home……. for the purposes of the financial assessment, disregard such other sums the adult or carer may receive as the authority considers appropriate”.
11. Paragraph 8.35 Care and Support Statutory Guidance says, “a local authority must leave the person with a specified amount of their own income so that the person has money to spend on personal items such as clothes and other items that are not part of their care. This is known as the personal expenses allowance (PEA). ……Local authorities have discretion to apply a higher income allowance in individual cases, for example where the person needs to contribute towards the cost of maintaining their former home.”

Deprivation of Liberty Safeguards

12. The Deprivation of Liberty Safeguards (DoLS) provide protection for people who lack the capacity to decide about their accommodation where such arrangements amount to a deprivation of their liberty. The setting such as the care home/hospital is called the ‘managing authority’. The managing authority must apply to the local authority (the ‘supervisory body’) for an authorisation if it considers there is a deprivation. On application, the supervisory body must carry out assessments within 21 days. The assessor should obtain the views of any relevant people. A relevant person includes close relatives who are interested in the person’s welfare.

Safeguarding

13. Care and Support Statutory guidance says,
14. “14.77 An enquiry is the action taken or instigated by the local authority in response to a concern that abuse or neglect may be taking place. ….. Whatever the course of subsequent action, the professional concerned should record the concern, the adult’s views, wishes, and any immediate action has taken and the reasons for those actions.
15. 14.78 The purpose of the enquiry is to decide whether or not the local authority or another organisation, or person, should do something to help and protect the adult.”

What happened

16. In April 2021 Ms C asked for advice about funded care. The Council told Ms C Mr D did not meet the criteria for health funded care. It also refused her formal request for a care needs assessment saying she should contact the Council when Mr D’s savings reduced to the financial threshold of £23250. At the time he had over £60000 in savings.
17. Ms C made a further request for an assessment on 6 May and asked the Council for advice on funding and top ups once the Council took over responsibility for Mr D’s care. The officer contacted the care home and records “Home do not charge a top up fee”. It also records, “Care act assessment discussed agreed that Mr D (sic) is eligible but unable to give a timeframe for this”. In June, following a hospital stay, Mr D moved care home.
18. In July the Council completed a safeguarding referral to consider an incident in Mr D’s new care home. This identified there was no DoLS authorisation in place and the care home would complete one. The Council records receiving a request for an authorisation on 16 July. The Council prioritised it at level 3, non-urgent.
19. On 12 October Ms C contacted the Council as Mr D’s savings were nearing the financial threshold for funding. The Council records it assigned a social worker on 19 October. In February 2022 Ms C contacted the Council chasing up the assessment as no worker had contacted her. The Council records it spoke with the care home who said it had discussed the top up fees when Mr D entered the care home. Ms C says the social worker told her the Council would only pay contracted rates and Ms C would have to pay a top up. The Council also told Ms C it did not provide care home residents with personal budgets.
20. The Council assessed Mr D’s needs in April. Following the assessment it contacted the care home to negotiate the top up; it also chased the DoLS referral after Ms C said it remained outstanding. The care home advised the top up was non-negotiable but later waived the additional fee. Ms C says this was because of her intervention not the Council. Ms C says although the Council eventually completed a DoLS assessment the assessor did not meet with her. Although her views were sought she considers this was not in a meaningful way and resulted in her having to provide further information/clarification so the assessor could amend the assessment.
21. The Council completed a financial assessment outlining Mr D’s assessed charge. Ms C challenged the assessed charge on the basis the Council had not allowed contributions towards a life insurance of £25 per week. Ms C asked the Council to add this to Mr D’s Personal Expenditure Allowance (PEA) so he could pay for his life insurance which he had been paying towards for the last 20 years. Ms C argued that if Mr D surrendered the policy the value would decrease by over £40000.
22. The Council refused to increase the PEA as it said the extra amount was unrelated to Mr D’s care or well-being needs. The Council says allowing the increase in PEA would essentially be using the public purse to enhance the inheritance of Mr D’s beneficiaries. It also said Mr D could use his savings to pay towards the cost of the insurance.
23. Ms C complained to the Council on 30 May. The Council contacted Ms C on 23 September apologising for the delay in responding and asking for a date to meet to discuss the complaint. The Council held a meeting on 24 October and on 17 November the Council says it sent Ms C a complaint response and a copy of the minutes of the meeting.

Is there fault causing injustice?

24. The Council did not act in line with section 9 Care Act when it refused to assess Mr D based on his finances. This was fault. Ms C has the uncertainty that had an assessment taken place the Council would have provided advice about whether Mr D’s placement was suitable to meet his needs, and was a missed opportunity to advise Ms C about the steps to take when Mr D fell below the financial threshold.
25. When the Council assigned a social worker to assess Mr D’s needs there was delay and a lack of communication between the assessed worker and Ms C. This resulted in Ms C having time and trouble in contacting the Council to get answers to legitimate questions and stress that Mr D’s finances would fall beneath the threshold.
26. The Council should have assessed Mr D’s needs and accordingly provided him with a personal budget which met his eligible needs. It should not have advised Ms C to pay a top up until it had assessed Mr D and provided an alternative which met his needs and did not have a top up. The Council’s failure to take these actions is not in line with the Care and Support Statutory Guidance and is fault.
27. Given the information in the assessment I consider on balance it is more likely than not Mr D’s needs could only have been met at his existing care home and the Council should not have asked Ms C to pay a top up. However because of these faults Ms C had to liaise with the care home. She had time, trouble, uncertainty and stress of having to take these avoidable actions.
28. The Council delayed in completing a DoLS assessment. There was a gap between the referral made by the care home in July 2021 and the completion by the Council in May 2022. This delay amounts to fault. Ms C says had the Council completed a DoLS assessment earlier Mr D would have had a care needs assessment and it would have identified issues about his care and potential funding earlier. While this would have allowed an earlier opportunity for Ms C’s involvement in the DoLS assessment I cannot say this would have covered issues such as funding or made any difference to the Council’s later actions.
29. Similarly Ms C says the safeguarding investigation should have triggered a care assessment as well as the DoLS assessment. There is no requirement for the Council to assess every person where there is a safeguarding referral. I therefore am unable to say the Council acted with fault. Even if I were to say the Council acted with fault I could not say the completion of a care assessment at that time would have made a material difference to Mr D in particular the funding of his care.
30. The Ombudsman cannot challenge a properly made decision. In this complaint the Council has discretion about whether to increase Mr D’s PEA to allow for contributions towards life insurance premiums. I cannot criticise the Council’s decision not to allow the increase for the following reasons:-
• the Council has considered and provided reasons as to why it will not agree to the added allowance,
• the Council has provided an alternative which allows the life insurance to continue and to prevent the potential losses associated with the early surrender of the policy.
31. While I understand Ms C does not agree with this decision and her reasons for this, I cannot challenge a properly made decision.

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Agreed action

32. I have found fault in the actions of the Council which has caused Mr D and Ms C injustice. I consider the following actions are suitable to remedy the complaint:-
33. Within one month of the final decision:
1. apologise to Ms C for the faults I have identified;
2. make a symbolic payment of £250 to Ms C for her time, trouble and the distress caused by the Council’s failures;
3. provide Mr D with a personal budget;
4. review Mr D’s finances and refund any payments made which would have taken him under the £23250 threshold.
34. Within three months of the final decision:
1. Remind and if necessary provide training to staff members of:
1. the duty to assess;
2. the process to follow when assessing and providing a personal budget for all those who have eligible assessed needs;
2. remind staff about the importance of completing DoLS assessments within the statutory time limits and evidence this is now occurring.
35. The Council should provide us with evidence it has complied with the actions above.

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Final decision

36. I have found in the actions of the Council which has caused Ms C and Mr D injustice. I consider the agreed actions above are suitable to remedy the complaint and have completed my investigation and closed the complaint on this basis.

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Investigator's decision on behalf of the Ombudsman