Summary: The Council acted in line with charging regulations and guidance when dealing with Mr and Mrs Y’s financial assessments for care charges and so there is no fault. Communication with Mr X about Mr Y’s fall in a care home in 2023 was poor; this was fault causing avoidable confusion. The Council will apologise.

The complaint

1. Mr X complained on behalf of his parents, Mr and Mrs Y. He said the Council:
1. failed to investigate a head injury Mr Y sustained while in a care home in 2023 and
2. failed to review Mr and Mrs Y’s financial assessments in or around July/August 2022
2. Mr X also complained:
1. the Council refused to pay money his MP directed it to pay.
2. about bullying, harassment and offensive behaviour including phone calls in the evening.
3. the Council moved Mr Y to a care home for reablement care despite his (Mr X’s) objections.
3. Mr X said the Council’s fault caused avoidable distress and a financial loss.

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The Ombudsman’s role and powers

4. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. We call complaints that haven’t been through a council’s procedure ‘premature complaints’. (Local Government Act 1974, section 26(5), section 34(B)6)
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. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but we use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

7. 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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What I have and have not investigated

The investigation period

8. The period of my investigation is July 2022 to January 2024. I explain why below:
• Mr X complained to us in October 2023. October 2022 to January 2024 is not a late period. July to September 2022 is late, but I have investigated this period because the earlier date is when Mr Y’s savings fell to the upper threshold where he was eligible to receive funding for care and support from the Council and is the start of a chain of contact with the finance team.
• Mr X had not completed the Council’s complaints procedure when he first contacted us in October 2023. We asked him to. The Council provided a final complaint response in January 2024. These means complaints about matters after January 2024 are premature and we expect Mr X to complain to the Council before we consider investigating them.

Complaints not investigated

9. I have not investigated the complaints in paragraph two because:
1. Councils act independently of an MP. They do not have to do what an MP recommends or asks. I do not regard what Mr X is describing as fault.
2. It is impractical for me to investigate the characteristics and behaviour of individual officers and any injustice is not significant enough to justify an investigation.
3. The Council’s complaint response of July 2023 said Mr Y’s discharge to reablement care was an NHS decision made by a hospital. We have no power to investigate the NHS. Mr X needs to use the NHS complaints procedure. The Council has already told him this.

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How I considered this complaint

10. I considered the complaint to us, the Council’s response to the complaint and documents set out in this statement.
11. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

12. Our Principles of Good Administrative Practice set out our expectations for councils. They say councils should:
1. Keep proper and appropriate records
2. Ensure information and advice is clear accurate and complete
3. Informing people what they can expect and what the service expects of them
13. If a council has reasonable cause to suspect abuse of an adult who needs care and support, it must make whatever enquiries it thinks is necessary to decide whether any action should be taken to protect the adult. (Care Act 2014, section 42)
14. The Council’s safeguarding procedures in relation to falls say:
• Falls should be reported to the first contact team whenever there is harm, including an injury likes a cut bruise or fracture. They should be reported also, where the care plan has not been followed, including not following manual handling guidance. (Falls where no harm has been suffered do not need to be reported)
• When the Council receives a safeguarding concern, the first contact team logs it and passes it to a senior social worker to make a decision. Not all concerns are dealt with via safeguarding. Some may be dealt with by a care review.
• Low level incidents which on their own do not meet the criteria for a full enquiry (including falls) are logged on the service provider’s (e.g. care home) record and used as part of the decision-making process for organisational abuse enquiries.
15. Councils arrange care and support for adults under duties and powers in the Care Act 2014. The law allows councils to charge for care and support they arrange. Detailed regulations and guidance set out the financial assessment (FA) and charging process councils need to follow. Councils can take most types of income and capital into account subject to exceptions which are set out in law and guidance. Relevant parts of the regulations are guidance are:
• Adults who have capital over £23,250 (‘above the upper threshold’) have to pay the full cost of care a council arranges for them. They are called ‘full cost payers.’ The lower threshold is £14 250. Councils disregard (ignore) capital below the lower threshold.
• Sometimes people have capital between the upper and lower thresholds. In these cases, they make a contribution from their capital towards care home fees. This is called tariff income. For every £250 or part of £250 between £14 250 and £23 250, they are treated as having an extra £1 per week.
• Disability Related Expenses (DRE) are extra costs a person may have to pay because of a care need. They only apply to non-residential care and to people who have been financially assessed to pay a charge. Guidance allows councils to ask a person for proof/evidence of expenses they have incurred.
• Councils usually take into account the value of a jointly owned house in an FA unless a person is living there as their main home. They may choose to disregard (not include) a house in other circumstances. This is called a ‘discretionary property disregard’

Summary of key events

16. Mr X and his brother are their parents’ deputies. This means a court has given them power to manage Mr and Mrs Y’s finances. Mr X told the Council at various points in 2022 and 2023 that he had health problems requiring hospital stays and recovery time at home. He explained he may not be able to deal with matters concerning his parents’ care and finances at those times.
17. In July 2022, Mr Y was living at home. He had a package of home care commissioned by the Council and was a full cost payer as he had savings above the upper threshold.
18. Mrs Y lived in a care home. The FA in place for Mrs Y in July 2022 said her charge was £95 a week (including a weekly tariff income of £36.)
19. In July 2022, the finance team emailed Mr X to say Mr Y’s savings were still above the upper threshold. At the end of July, the finance team told Mr X that he needed to send in copies of Mr Y’s bank statements and it would complete a financial assessment. Mr X emailed back saying how much was in his parents’ accounts.
20. In August the finance team told Mr X again that he needed to provide bank statements for Mr and Mrs Y’s accounts. The Council said balances or written emails were not sufficient as proof. The finance team said once Mr X had provided the evidence, it would do a financial assessment. Mr X said he had been having problems with his parents’ account and had been advised to open separate accounts for them and this had taken a lot of time and effort. He said he had applied for pension credit for Mrs Y but had no response from the Department for Work and Pensions.
21. Mr X’s lawyer and the Council exchanged emails in August. The lawyer provided bank statements for Mr Y’s account(s) and asked for Mr Y’s financial assessment to be done. The finance team responded a few days later with a copy of Mr Y’s reviewed FA. Mr Y’s charge was £207, backdated to 7 July; (which was the date his capital fell to the upper threshold). The lawyer asked about DRE and the finance team replied saying the Council applied a standard weekly DRE allowance of £10 but would consider a higher amount with evidence of expenses. Mr X emailed the finance team with a list of disability expenses. He did not provide documentary evidence (receipts, bills or invoices) to support his claim.
22. In the middle of September, the finance team told Mr X in an email that he needed to provide written proof of Mr Y’s disability expenses in order for the Council to assess them with a view to increasing the standard £10 weekly allowance Mr Y was already getting.
23. In October, Mr X emailed the Council saying he had not heard anything about his parents’ FAs. The finance team responded confirming Mrs Y’s weekly charge was £95 a week and did not include pension credit (and would not do so until the DWP confirmed she was receiving it). The Council went on to say he needed to provide documents to support any DRE and until this was received, there would be no increase to the standard £10 DRE on Mr Y’s FA.
24. In November, Mr X emailed the Council asking it to confirm if the charge for Mrs Y’s care included a payment ‘as if she was receiving pension credit’ (PC). He said the DWP had not made a decision on the claim yet. The finance team responded saying Mrs Y’s FA did not include an amount for PC and only her state pension was included as income, but if she was awarded PC, then it would revise the FA accordingly. The finance manager told Mr X to supply full bank statements so it could make changes to capital levels if appropriate and reduce tariff income accordingly.
25. Mr X provided a bank statement for Mrs Y in the middle of November. Mrs Y’s FA was re-done in the middle of November and backdated to the start of October. The outcome was a slight decrease in her charge to £91.
26. Mr X also provided statements for Mr Y showing a total balance of £22 400. The finance manager emailed him in December saying the values showed a slight increase in capital and so the Council had not done re-assessments. They also told Mr X again that he needed to provide evidence of DRE (not just a list.) The finance manager went on to explain how tariff income worked.
27. Mrs Y was refused PC in November 2022. In February 2023, he emailed the Council about this. He also claimed the Council had not confirmed Mrs Y had been financially assessed in July 2022. The finance team responded saying they had checked with the DWP who said they had now registered him as having power of attorney/deputyship and he needed to pursue the PC claim with the DWP. The finance team went on to say PC was not included in Mrs Y’s FA.
28. Mr X completed an FA review form for Mrs Y in March 2023. The finance team asked him to send in a bank statement for April once he had it. Internal records indicate Mr X did not provide a statement and so the review was not actioned.
29. The finance team wrote to Mr X at the end of March explaining Mrs Y’s charge would increase to £97 the following month due to the yearly rise in the state pension.
30. In May, Mr X told the finance team Mrs Y had been awarded PC and backdated. The Council invoiced Mrs Y for the PC and the records indicate he paid the invoice. In June, the finance team reassessed Mrs Y’s charge to take into account her backdated PC award. The team wrote to Mr X explaining the recalculated charge. The charge from April 2023 was £159 and from May, £181
31. In September 2023, the Council wrote to Mr X saying Mr Y was living in a care home permanently from 17 May 2023 and his care was funded by the NHS. It said it was going to take into account the value of the marital home in Mrs Y’s FA, with a discretionary disregard for 26 weeks from 17 May. This meant from 15 November (that is, after the six-month disregard ended), Mrs Y would have to pay the full cost of her care because the value of the home would be taken into account. The Council said Mrs Y could have a deferred payment agreement (which is an agreement to delay payment of care home charges until a property is sold) and gave him information about this.
32. The finance team wrote to Mr X in November, enclosing a deferred payment agreement for him to sign. It explained the disregard period was coming to an end. Mr X’s lawyer emailed the Council in January 2024 enclosing a court order saying the court’s permission was needed to sell Mrs Y’s house and asking the Council to ‘informally loan’ the care home charges until the legal arrangements could be made to allow Mr X to enter into a deferred payment agreement. The finance team confirmed the Council would continue to fund Mrs Y’s placement.

The Council’s responses to the complaints

33. Mr X raised formal complaints with the Council several times in 2022 and 2023 about the matters I am investigating and about other matters. I have summarised relevant parts of the responses in the following three paragraphs.
34. The Council’s response in January 2023 said:
• The finance team had been trying to establish Mr and Mrs Y’s financial circumstances in order to work out their care contribution.
• Mr X and his brother were legally responsible as deputies for managing their parents’ finances.
• It was fully funding Mrs Y’s placement at the care home temporarily due to not being able to establish her finances. Costs would be backdated once the Council had a financial declaration for her.
35. The Council’s response in July 2023 said:
• It had contacted the care home which had no record of Mr Y falling during his stay in 2023. During a previous stay in March 2022, the ambulance service made a safeguarding referral as it was concerned there was a possible delay by care home staff in calling emergency services. The safeguarding team investigated the concern in 2023 and found the care home responded effectively to the fall. A member of the safeguarding team spoke to him about the investigation.
36. The Council’s response in January 2024 said:
1. It had checked a different system (Connecting Care) and this system DID hold details of a fall by Mr Y in the care home in 2023. The Council will take further action with the care home to explore why the care home did not notify the safeguarding team of the fall.
2. It had a responsibility to inform deputies about the financial assessment process regardless of their personal circumstances. Because all adults receiving social care have to pay a charge. So representatives cannot choose whether to engage with the finance team. If he was unwell, the Council would expect the other deputy to step up.
3. Mr Y has no current financial assessment since he stopped living in his own home with a package of care. Mr Y’s care charges from 13 June 2022 to 5 February 2023 are £7520. The Council would be pursuing payment. There was no charge when Mr Y was in hospital.
4. From 14 April 2023, Mr Y was eligible for free NHS continuing healthcare funding.
5. Mrs Y was a permanent resident of a care home. She was treated to a separate financial assessment, but joint assets were taken into account. The property was not registered with the Land Registry. So the Council assumed she had a 50% share.
6. Mr Y is also permanent resident of a care home. The Council noted Mr X’s view that Mr Y may return to his home, but unless anything changed, the Council would continue to regard Mr Y as a permanent resident. So from 15 November 2023 the value of Mr Y’s house was taken into account in the financial assessment. The Council had offered a deferred payment agreement (DPA). He did not have to take this up, but if he did not, then the Council would stop commissioning Mr Y’s care and it would then be Mr X’s responsibility as deputy to pay the care home the fees.
7. The finance team had sent him a letter in November 2023 about Mrs Y’s care fees. It had offered a DPA as well for her and had asked for Mr X to provide documents. If he did not reply, the Council would assume that he did not want a DPA and he would then need to pay the fees directly to the care home dating back to 15 November 2023.
8. The finance team confirmed it was aware Mr X was looking into registering the property with the Land Registry. This was likely to take some time. So the Council would not take any action relating to the contract with the care home for Mrs Y’s care and care changes would continue to accrue (and be owed to the Council when the Land Registry issue was resolved)
9. If Mrs Y did not have an interest in the property, then he needed to provide information about this
37. I asked the Council to provide me with information about the action it had taken to follow up with the care home about Mr Y’s fall and head injury in 2023 (see paragraph 36(a).) The Council told me the safeguarding manager had considered the incident and decided it did not meet the threshold for further action under safeguarding procedures.

Was there fault?

The Council failed to investigate a head injury Mr Y sustained while in a care home in 2023

38. A fall is not generally considered to be a safeguarding issue unless it happened because the person’s care plan or manual handling guidance was not followed. The evidence indicates the Council was made aware of the fall and it was recorded in a different system (care connector) however, this did not come to light until late on in the complaints procedure. This meant the Council incorrectly suggested in one of the complaint responses that it did not have any information about a fall in 2023. Communication with Mr X was not in line with our expectation that a council gives accurate information and advice which was fault causing avoidable confusion. The Council later clarified it did hold a record of the fall and it had since considered the incident and decided to take no further action. This is in line with our expectations and its safeguarding procedures and there is no fault.

The Council failed to review Mr and Mrs Y’s financial assessments in or around July/August 2022

39. The case records show the finance team made regular contact in response to Mr X’s requests and queries about both his parents FAs. Although Mr X had periods of illness, the Council was entitled to correspond with him in relation to his parents care charges as he was appointed by the court to manage their finances.
40. Mr X sought a review of his parents care charges in July 2022. To complete the review, the finance team needed evidence from Mr X. He needed to provide bank statements in order for the Council to review Mr and Mrs Y’s care charges. His emails to the finance team indicate he was having problems with their account and with getting statements. This did not mean the Council had to take his word about the account balances. There is no fault in asking for the evidence required.
41. Mrs Y’s charge was calculated in 2022 to take into account her income at the time, including tariff income. This was in line with regulations and guidance and there is no fault. Her charge was amended and backdated in 2023 once she was awarded PC. This was in line with statutory guidance and there was no fault.
42. Mr Y’s care charge was revised in August 2022 (through correspondence with Mr X’s lawyer) to recognise that his capital had fallen to the upper threshold. The Council emailed the lawyer with a breakdown of the charge. This was in line with the charging regulations and guidance and there is no fault. Mr X sought additional DRE for Mr Y and listed the expenses he wanted the Council to consider. The Council told him several times to supply evidence the claimed expenses had been incurred. He did not. My view is the Council clearly communicated the information it needed from Mr X. This was in line with our principles as I have set out in paragraph 12(c) and there is no fault.

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Agreed action

43. Within one month, the Council will apologise for the avoidable confusion caused by giving Mr X incorrect information about it having no record of Mr Y’s fall in a care home in 2023. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. I have found fault causing injustice. The Council has agreed to apologise to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman