Summary: We upheld a complaint the Council gave wrong advice to a Care Provider supporting Mrs X’s late husband who wanted to enter a residential detox placement. We found the Council wrongly advised he would not be eligible for financial support because he jointly owned a home with Mrs X. The result of this wrong advice is that it caused Mrs X distress, as she does not know if later events, including the death of her husband, may have been different. The Council has accepted these findings. At the end of this statement, we set out the action it has agreed to remedy that distress (and that caused by some poor complaint handling) and to improve its service.

The complaint

1. Mrs X complained about advice given by the Council to a Care Provider who worked with her late husband, Mr Y. The Council told the Care Provider that if Mr Y entered a residential care placement for help with alcohol addiction, he would not qualify for any financial support towards the cost of care. Mrs X said that advice was wrong, given Mr Y’s circumstances at the time.
2. Mrs X said the result of receiving this wrong advice was that Y could not go to the residential care placement for detox treatment. He died around seven months later. Mrs X says she will never know if Mr Y had accessed the detox treatment, whether he would have died.

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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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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

7. Before issuing this decision statement, I considered:

• Mrs X’s complaint to this office and any supporting information she provided;
• an earlier complaint Mrs X made to the Council and its reply to her;
• information provided by the Council in response to written enquiries;
• any relevant law or Government guidance referred to below;
• any relevant guidance published by the Ombudsman, referred to below.

8. I also gave both Mrs X and the Council a chance to comment on a draft version of this decision statement. I took account of any comments they made, or further evidence they provided, before finalising the decision statement.

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What I found

Relevant law and guidance

9. Local authorities have a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs. Where it does so, a local authority has discretion whether to charge under section 14 of the Care Act following a person’s needs assessment. Where it decides to charge, it must follow the Care and Support (Charging and Assessment of Resources) Regulations and take account of statutory guidance (paragraph 8.4, Care and Support Statutory Guidance – emphasis as original).
10. If a person receives care in a residential care setting and they have capital above the upper capital limit, then they cannot receive financial help from the Council. The upper capital limit at the time of this complaint was £23,250.
11. The statutory guidance explains how the Council should calculate capital (see Annex B). Paragraph 34 says: “In the following circumstances the value of the person’s main or only home must be disregarded:

(a) where the person is receiving care in a setting that is not a care home;

(b) if the person’s stay in a care home is temporary and they either:

(i) intend to return to that property and that property is still available to them; or

(ii) are taking reasonable steps to dispose of the property in order to acquire another more suitable property to return to;

(c) where the person no longer occupies the property but it is occupied in part or whole as their main or only home by any of the people listed below […]:

(i) the persons partner, former partner or civil partner, except where they are estranged;

(ii) a lone parent who is the person’s estranged or divorced partner;

(iii) […].”

The Council’s complaint procedure

12. The Council publishes information about its complaint procedures online. It has a procedure for complaints about adult care services which says the Council will first try to resolve a case through 'early resolution’, within two working days of receipt. If it cannot resolve the complaint this way it will draw up an individual action plan with the complainant. This will explain what will happen next and how long it will take. The Council expects to respond to most complaints in 20 working days. A written response will follow later, with a right to ask a senior manager to review the response if the complainant remains dissatisfied.

The key facts

13. The events at the crux of this complaint took place in early 2021. Mr Y was an adult of working age, married to Mrs X. They owned a home together in another Council area. They had two dependent children of primary school age.
14. Mr Y had both physical and mental ill health. He had an alcohol addiction. His physical health issues included having a condition for which he could not receive medication because of his alcoholism.
15. Local children’s services (i.e., not from West Sussex County Council) became involved with the family. In 2020, they encouraged the couple live apart while Mr Y sought support for his addiction. Mrs X says the couple accepted this advice and by 2021 she considered divorce. However, she had not ruled out reconciliation if Mr Y could overcome his addiction. She says after Mr Y left the family home they were in regular contact and Mr Y would visit to see his children. Mrs X provided him with practical and emotional support where she could.
16. After Mr Y left the family home, he had no fixed address. He had a family connection to an address in the Council’s area and lived there for a time in 2020. But by February 2021 he was staying in hotels.
17. Around that time, Mr Y’s GP put him in touch with a Care Provider contracted by the Council to support people with addiction. That organisation said it could offer Mr Y a place in a residential care home that offered detox treatments. It contacted the Council to see if Mr Y might receive any help towards the fees. The Care Provider completed a referral and this went to the Council’s welfare benefit advice team.
18. The Care Provider recorded the Council’s advice as follows: “as [Mr Y] still married and legal part owner of the house, he would be liable for full costs for detox and rehab”.
19. The Council’s notes recorded: “[Mr Y] jointly owned a property with his wife […] explained that case needed to be full cost paid by [Mr Y]”.
20. The Care Provider stopped supporting Mr Y soon after that because of a lack of engagement. Mrs X told me that Mr Y could not get his addiction under control in the community and he considered a residential detox “his last chance”. She says he had no way to fund the detox.
21. In September 2021 Mr Y died at the property in the Council’s area. An inquest held in January 2022 noted Mr Y drank heavily but did not find out the cause of death, recording an open verdict.
22. As part of the inquest Mrs X received copies of papers including those from the Care Provider and Mr Y’s GP. She told us she could not go through these at the time because of her grief. But in 2023, she noted the record of the Care Provider speaking to the Council. She then spoke to a friend with knowledge of social care and came to believe the Council had given Care Provider wrong advice.
23. So, in June 2023, Mrs X made a complaint to the Council. In October 2023, Mrs X contacted us as she had received no reply. We asked the Council the cause of the delay. It told us it had contacted the Care Provider and asked it to provide it with information. The Council did not receive this until early November.
24. In late December 2023 the Council gave its reply to the complaint under its adult social care procedure. It quoted paragraphs 34a) and b) of the Government’s statutory guidance (see paragraph 11). It said after taking account of this, it considered it gave correct advice.
25. Mrs X challenged this and in February 2024, we asked the Council to consider her complaint at Stage 2 of its complaint procedure. In asking the Council to reconsider Mrs X drew attention to some case law. The Council says it took several weeks to research this, receiving information in mid-March 2024. It then wrote to Mrs X at the end of April 2024 and confirmed its earlier reply.
26. In reply to my enquiries the Council advised that it has re-organised the welfare advice it gives since the events covered by this complaint. In 2023 it passed the responsibility for advising on social care funding to financial assessment officers. They now deal with all administration of financial assessments for social care. This includes giving advice, helping to complete forms, completing assessments and responding to later enquiries.

My findings

The Ombudsman’s jurisdiction

27. The term jurisdiction refers to our legal powers to investigate a complaint. In this case I noted Mrs X made her complaint to us late. She obtained the papers detailing the Council’s advice, about which she complains, in early 2022. But she made no complaint to us until October 2023, over twelve months later.
28. However, I considered there were good reasons justifying investigation, despite the passage of time:

• first, I accepted Mrs X’s statement she could not initially go through some of the papers disclosed at the inquest into Mr Y’s death because of her grief. It was the information in those papers which resulted in the complaint;
• second, I also accepted her statement that she did not immediately question the advice the Council gave to the Care Provider, until she spoke to someone with knowledge of social care funding;
• third, that Mrs X then chose to make a complaint to the Council, and it delayed in answering that. Mrs X waited four months for it to respond before asking us to investigate. But for the Council’s delay, I consider Mrs X would have contacted us two to three months earlier;
• fourth, while the events under investigation went back to 2021, the Council had kept records and so we could safely reach findings on the complaint.

Findings on the complaint

29. I found the Council at fault for giving wrong advice to the Care Provider in February 2021.
30. In its replies to Mrs X’s complaint the Council focused on clause 34b) of the relevant Government advice. This asks it to consider if the person wanting financial help, who is entering residential care temporarily, intends to return to a property that is their “main or only home”. The guidance says the Council cannot treat the home as capital if it is “still available to them”, or else they must be trying to “dispose” of it.
31. But I think it was also relevant to consider clause 34c). This explains what happens if the person entering residential care no longer lives in their “main or only home”. The Council must ignore the property value if a partner lives there and the couple are not estranged (clause i). But if they are estranged, the Council must still disregard the property if the member of the couple who lives there is a lone parent (clause ii).
32. So, there were three separate matters for the Council to consider. The clause in paragraph 34b) and the two clauses in 34c). I did not see how the Council could confidently assert that Mr Y did not meet any of these circumstances for a property disregard based on what it knew.
33. This was because, the CounciI’s notes did not record:

• where Mr Y lived in February 2021 and the circumstances in which he found himself living there;
• whether therefore his main or only home was the family home; if he intended to return to that, or if it was available for his return; or if he was trying to dispose of it;
• whether in fact he and Mrs X were estranged;
• if they were estranged, whether Mrs X was a lone parent.

34. The Council had an obligation to try and find out these matters, so it could give informed advice. I recognised that it may not have received a detailed explanation for Mr Y’s circumstances from the Care Provider, although it could have asked the Care Provider to confirm information in writing.
35. I noted there were potential discrepancies in the evidence about where Mr Y stayed in February 2021. And, if Mrs X and Mr Y planned to reconcile if Mr Y found help for his alcohol addiction. But even if the Council reached the view that Mr Y had estranged from Mrs X and he could not, or would not, return to the family home, Mrs X still lived there as a lone parent. So, in any financial assessment to decide social care funding, the Council would have to disregard Mr Y’s financial interest in the family home.
36. I also considered an opportunity missed by the Council to clarify its advice, as it put nothing in writing to the Care Provider. Had it done so and pointed the Care Provider to the relevant passage in the Care and Support statutory guidance, then it might have queried its advice.
37. I considered next the consequence of the Council’s wrong advice. I could not say it definitively resulted in Mr Y not entering the residential detox placement. However, on balance, I though it more likely than not, Mr Y would have pursued the placement if available to him in early 2021. I took account that Mr Y went to GP for help, who put him in touch with the Care Provider, so he actively took advice to try and overcome his addiction. I also took account of Mrs X’s statements on his state of mind at the time of these events. Because while she and Mr Y had separated, she explained they remained in close contact and he would visit the family home to see his children. I also noted that Mr Y’s contact with the Care Provider only broke down later, after it told Mr Y he would have to fund his own detox placement.
38. However, Mr Y would also have had more hurdles to cross before entering a residential placement. The Council (or the Council where Mr Y’s family home was located) would also have had to undertake a care needs assessment.
39. I also could not say that if Mr Y had entered the detox placement it would have led to his recovery from addiction or allowed him to receive other medical treatment for his physical health. Nor whether either would have prevented his death, for which the Coroner recorded an open verdict.
40. I accepted Mrs X had the belief Mr Y may not have died when he did, had he entered the residential detox in Spring 2021. Given what I have said above, I found that understandable. However, it was not something I could find, given the factors I have set out in paragraphs 40 and 41.
41. However, I considered there was still uncertainty in not knowing if events could have turned out differently. I considered, for the reasons set out in paragraph 39, the Council’s fault contributed to that uncertainty. We consider uncertainty a source of distress. So, I found the Council’s fault caused Mrs X distress, which was an injustice to her. I asked it to remedy this as part of my investigation.
42. I also considered the Council’s complaint handling in this case. I had concern about the delay in this case. Both at stage one and stage two the Council delayed giving its replies to the complaint, by around five months and one month respectively. In both cases there was some good cause for the delay. At stage one, this was because the Council wanted information from the Care Provider to inform its reply which it was slow to provide. And at stage two, the Council wanted to get an opinion on the case law Mrs X quoted.
43. However, in both instances the Council still took several more weeks to respond after receiving the information it waited for. In between it did not tell Mrs X there would be a delay, the cause of any delay, nor when it would reply. So, even though some delay was unavoidable the Council added to it and that was also a fault, with the failure to keep in touch with Mrs X. This was a further source of distress and avoidable time and trouble to her, which was a further injustice.

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Agreed action

44. The Council has accepted these findings. To remedy Mrs X’s injustice, it has agreed that within 20 working days of this decision it will:
1. apologise to Mrs X, accepting the findings of this investigation, after also taking account of our published guidance on remedies (section 3.2); Guidance on remedies - Local Government and Social Care Ombudsman
2. make a symbolic payment to Mrs X of £650. This comprises £500 to recognise the distress caused by the Council’s wrong advice to the Care Provider and £150 for the distress, time and trouble caused by its poor complaint handling.
45. The Council has also agreed to improve its service following this complaint. It has changed the way it delivers advice since the events covered by this complaint, making a repeat less likely. But it has agreed that within two months of this decision, it will deliver a briefing to those who currently give advice, to ensure it learns lessons from this complaint. Specifically, that briefing will cover:

• the importance of finding out the facts around home ownership and who lives in the home, if someone has capital in a property but lives elsewhere; this may include asking information to be clarified in writing;
• the importance of also clarifying advice in writing wherever possible and keeping notes explaining how the adviser has explored the person’s capital with them or their representative.

46. The Council understands it will need to provide us with evidence it has complied with the above actions.

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Final decision

47. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Mrs X. The Council accepted these findings and it has agreed action that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman