Summary: Ms C complains about the Council’s assessment for residential care charges, and enquiries it made about a potential deprivation of income. I find no fault in the way the Council decided and acted in determining a deprivation of income or in the Council’s assessment of charge.

The complaint

1. The complainant who I call Ms C complains about charges related to her late father, who I refer to as Mr D. Ms C complains the Council failed to properly assess Mr D’s charges for residential care, provided misleading information, and was excessive and forceful in the way it asked for information.
2. Ms C says the Council’s actions caused her stress, time, and trouble. Ms C says the current financial assessment and the outstanding charge is wrong. Ms C says her father’s estate should not be liable for residential care costs as the Council told her it would fully fund her father’s care.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)

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 discussed Ms C’s complaint with her and considered the initial information provided by both Ms C and the Council. I made enquiries of the Council asking it questions and for supporting documentation. I considered:
• the Council’s response to my enquiries;
• case notes and financial assessments;
• the Council’s “Charging and Financial Assessment Policy” 2021;
• Care Act 2004 and associated Care and Support Statutory Guidance.
7. 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

8. In August 2022 Mr D moved into a care home following a stay in hospital. NHS Continuing Healthcare (CHC) paid for all the care. Later in 2022 Mr D was assessed as no longer eligible for CHC funding. Ms C has appealed this decision and is waiting for the result.

What should have happened

Deprivation of assets

9. Annex E Care and Support Statutory Guidance says,
10. “3) When undertaking or reviewing a financial assessment a local authority may identify circumstances that suggest that a person may have deliberately deprived themselves of assets in order to reduce the level of the contribution towards the cost of their care. In such circumstances, the local authority should have regard to this guidance. Clearly, local authorities should treat this issue with sensitivity and care.
11. 4) People should be treated with dignity and respect and be able to spend the money they have saved as they wish – it is their money after all. ….. it is important that people pay the contribution to their care costs that they are responsible for. This is important to the overall affordability of the care and support system….”
12. “9) A person can deprive themselves of capital in many ways, but common approaches may be:
13. (a) a lump-sum payment to someone else, for example as a gift”
14. The Council’s “Charging and Financial Assessment Policy” says,
15. “6.1 People with care and support needs are free to spend their income and assets as they see fit including, making gifts to friends and family. This is important for promoting their wellbeing and enabling them to live fulfilling independent lives. However, it is also important that people pay their fair contribution towards their care and support costs.
16. 6.2 There are some cases where it is reasonable to predict that care costs will be incurred and a person has chosen to ‘deprive’ themselves of either capital or income. Where we believe this may be the case, we will follow our policy called ‘Deprivation of Assets”

Assessment of charge

17. When entering a care home the Council must leave a person with a “Personal Expenses Allowance” (PEA) from their income. The PEA is usually a set amount, but Annex C says in some circumstances councils can increase the allowance to allow for the costs in maintaining a disregarded property. The Council’s “Charging and Financial Assessment Policy” says,
18. “7.5 Dorset has 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, which has been ‘disregarded’ in the financial assessment.”

What happened

19. The Council was aware on 16 December 2022 that Mr D’s CHC funding was ending in January 2023. The Council contacted Mr D who said he could manage his finances with the help of his daughter, Ms C. The case notes say the Council explained the process for funding a care home and sent Mr D a “guidance booklet and checklist”. The Council also emailed Ms C a “Paying for care advice handbook”. With Mr D’s agreement the Council arranged a telephone financial assessment for 20 January. The Council says it sent the result of the financial assessment to Mr D and asked for verification documents.
20. On 10 February the Council received a signed declaration from Mr D for 50% of his occupational pension to be provided to his partner. Ms C says the Council did not initially advise Mr D that he could do this, and it was only after prompting by her the Council offered this to Mr D.
21. The Council sent a letter on 13 February asking for bank statements and querying amounts spent in November and December which included a cash payment of £1600 to one of Mr D’s children. The Council provided a seven day response date. Ms C says she found it difficult to meet this deadline because of the nature of the documentation sought and because she did not live near Mr D.
22. During this period the Council also provided charging assessments. Ms C challenged the assessments because they did not include Mr D’s costs in maintaining a disregarded property. Ms C says the Council forced her to sign documents on behalf of her father when she had no legal authority to do so and no consent from her father. The Council says Ms C signed a form to say she was acting as an agent for Mr D but did not force her to sign the document.
23. There was communication between the Council and Ms C about gifts and various transactions until Mr D passed away on 10 March. The Council sent a further email on 16 March querying further transactions. Ms C responded saying Mr D had passed away. On 17 March the Council accepted there was no deprivation of income.
24. On 30 March Ms C received an invoice for £2659.81 which included a period from 5 March to 1 April. Ms C says she is unclear why the Council has charged for a period after Mr D died. The Council has provided a statement showing the outstanding amounts until 10 March. It explains the end date used is the accounting period not the end date of the care.

Was there fault causing injustice?

Payment of charge

25. Ms C says the Council told her Mr D would not have to pay for his care. I have seen no evidence to suggest this was the case. I have however seen email exchanges and evidence of the Council sending Mr D an information booklet about paying for care and liaising with Ms C about the charges. I am therefore unable to say Mr D was not aware he would have to pay for his care. If Ms C is successful in a review of NHS CHC the estate will get a refund of Mr D’s care costs.

Payment for care after 10 March

26. Ms C says the Council originally provided an invoice until the end of April. The Council says the invoice date is misleading, but the amount owed correct. There is no fault in the Council’s charge as it ends on the date of Mr D’s death. I would however suggest the Council reviews how it dates invoices to avoid confusion.

Financial assessments

27. The Council completed financial assessments without delay. It also followed up phone conversations with information booklets explaining charges for residential care. I have seen nothing to suggest it should not have contacted Mr D directly. It also contacted Ms C for additional information with Mr D’s consent. While I understand there were several assessments for charge; this was in response to further information provided by Mr D and Ms C which changed the weekly contributions. While this was frustrating for Ms C I do not find fault with the Council as it acted expediently on receiving information relevant to the financial assessment.
28. Ms C says the Council asked her to sign financial forms when she had no legal authority to do so. From the information I have seen the Council asked Ms C to act as an agent for Mr D with his agreement. Ms C did not have to sign the document. Even if I were to find fault with the Council’s actions, I cannot say Ms C was caused significant injustice.
29. Ms C complains the Council did not properly consider whether Mr D had sufficient funds to cover the expenses of a disregarded property which his partner still lived in. The Council’s charging policy outlined above says the Council can allow a person to keep more of their income if they need to maintain a disregarded property. However Mr D did not own the property and therefore did not meet the requirements for an additional PEA.

Deprivation of assets

30. Both Annex E Care and Support Statutory Guidance and the Council’s own guidance say people should have self-autonomy and choose the way in which they spend their money. However a Council must balance its responsibility to protect the public purse and act or make enquiries where there “are circumstances” that suggest a person may have deliberately deprived themselves of assets. Annex E provides an example of a lump sum payment of a gift.
31. I find no fault in the way the Council acted. It highlighted a large lump sum payment and asked Ms C questions about the payment. Ms C says the timescales were short and it was difficult to get information as quickly as the Council wanted as she does not live nearby. I appreciate Ms C’s difficulties and am aware Annex E says councils must act with sensitivity. I have reviewed the emails and letters sent and while the time scales are short, I do not consider the Council acted inappropriately or overzealously. Ms C could have asked for extensions if she felt she needed more time but did not do this.
32. The Council sent Ms C a further email about transactions after Mr D had died. It does not appear as though the officer was aware of Mr D’s death. Ms C was understandably upset by this email. I would suggest the Council considers how information about deaths are shared between departments to avoid this happening in the future.

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Final decision

33. I have found no fault in the actions of the Council. I have now completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman