Summary: Mr Y complained the Council delayed carrying out a financial assessment, did not give clear information, and did not discuss Mrs X contributing to the cost of her care. We found the Council at fault for delays completing Mrs X’s financial assessment and for failing to send clear written information about charging and the assessment process at the relevant time. The Council agreed to provide Mrs X’s family a symbolic financial remedy for the frustration and distress this caused.

The complaint

1. Mr Y complained the Council delayed carrying out a financial assessment for his mother, Mrs X. He also complained the Council failed to provide clear and relevant charging information before and during the financial assessment process, and did not discuss Mrs X contributing to the cost of her care.
2. Mr Y said the Council did not refer to any specific sections of the Care Act or statutory guidance, and the information the Council gave as part of its complaint response was not provided at the relevant time of Mrs X’s assessment.
3. Mr Y said the Council’s actions impacted the family financially. If they had known from the outset that Mrs X would have to contribute, they would have considered alternative accommodation.

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The Ombudsman’s role and powers

4. 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)
5. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
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. As part of the investigation, I considered the complaint and the information Mr Y provided.
8. I made written enquiries of the Council and considered its response along with relevant law and guidance.
9. Mr Y 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

Charging for permanent residential care

10. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support.
11. An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs. Local authorities should inform the individual of an indicative timescale over which their assessment will be conducted and keep the person informed throughout the assessment process.
12. Councils should carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people an indicative timescale over which their assessment will be conducted and keep the person informed throughout the assessment process. (Care and Support Statutory Guidance, paragraph 6.29)
13. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.

Where a council has decided to charge, it must carry out a financial assessment of what the person can afford to pay and, once complete, it must give a written record of that assessment to the person. This could be provided alongside a person’s care and support plan or separately, including via online means. It should explain how the assessment has been carried out, what the charge will be and how often it will be made, and if there is any fluctuation in charges, the reason. Councils should ensure that this is provided in a manner that the person can easily understand, in line with its duties on providing information and advice. (Care and Support Statutory Guidance, paragraph 8.16)

14. The overarching principle is that people should only be required to pay what they can afford. People will be entitled to financial support based on a means-test and some will be entitled to free care. The principles are that the approach to charging for care and support needs should:
• ensure that people are not charged more than it is reasonably practicable for them to pay.
• be comprehensive, to reduce variation in the way people are assessed and charged.
• be clear and transparent, so people know what they will be charged.
• apply the charging rules equally so those with similar needs or services are treated the same and minimise anomalies between different care settings.
• be sustainable for local authorities in the long-term.

(Care and Support Statutory Guidance, paragraph 8.2)

15. Councils should ensure there is sufficient information and advice available in a suitable format for the person’s needs, in line with the Equality Act 2010, to ensure that they or their representative are able to understand any contributions they are asked to make. (Care and Support Statutory Guidance, paragraph 8.3)
16. Where a council is meeting needs by arranging a care home, it is responsible for contracting with the provider. It is also responsible for paying the full amount, including where a ‘top-up’ fee is being paid. However, where all parties are agreed it may choose to allow the person to pay the provider directly for the ‘top-up’ where this is permitted. (Care and Support Statutory Guidance, paragraph 8.33)
17. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.
18. The upper capital limit is £23,250. The lower capital limit is £14,250.

What happened

19. I have summarised below some key events leading to Mr Y’s complaint. This is not intended to be a detailed account of what took place.
20. Before this complaint, Mrs X lived in a care home. One of her son’s (Mr W) had Lasting Power of Attorney (LPA) for her health and welfare. Another son (Mr Z) had LPA for her financial affairs.
21. Mr Z telephoned the Council for a financial assessment in February 2023. He said Mrs X was self-funding her care home place, but her finances were running down to the threshold. She had about £26,000 and her care costs were £4,500 a month.
22. The Council referred Mrs X for a financial assessment.
23. A Council officer telephoned Mr W on 4 April 2023, about the financial assessment referral. The officer explained this is a means tested process so there is no guarantee Mrs X will not be contributing towards her care. Mr W said the family wanted Mrs X to stay at the care home with funding help.
24. A social worker met Mrs X and her family on 25 April for an assessment of her care and support needs in the care home. They produced an indicative weekly budget of £596.55 to meet her needs. The social worker asked care home staff to speak to Mrs X about her finances and to check her understanding before the financial assessment.
25. A social worker emailed managers in the Council’s adult social care team on 26 April 2023 after Mrs X’s family said they refused to pay a top up fee of £125 a week. They spoke to the care home, but it would not waive the top up fee. The social worker said it was not in Mrs X’s best interest to move her.
26. The Council emailed Mrs X’s son W on 4 May, confirming its agreement for Mr X not to pay a top up fee. The Council said it would set up an arranged fee with the care home instead and had referred Mrs X to its financial assessment team to find out her contribution towards care.
27. Mrs X’s son W asked if Mrs X’s contribution meant how much she has contributed to date, or to confirm she is at the financial threshold.
28. The Council said it would set up the fees direct with the care home. Mrs X’s contribution will be how much she contributed moving forward, when her finances fall below the threshold. The financial assessment will confirm if she’s at the threshold yet.
29. The Council updated Mrs X’s care and support plan on 16 May 2023. It negotiated a weekly rate of £842.97 with the care home.
30. The Council started paying weekly fees to the care home of £842.97 from 16 May.
31. The Council emailed Mr W on 17 May, confirming its agreement to pay Mrs X’s top up fee. It said it was waiting for the financial assessment to confirm how much she must contribute and if she is now under the upper capital limit. It said, once this is confirmed, it will backdate Mrs X’s payments from the point she dropped below the upper limit.
32. Mr Z emailed the Council on 19 July 2023 about care home fees. He said, following assessment, the Council determined it would meet the full costs of Mrs X’s care from 16 May 2023. However, the family received a bill of £7,810.71 from the care home, which Mr Z thought was for the period between February and May when the Council was carrying out its assessment.
33. The Council spoke with Mr Z on 8 August 2023 to take details for Mrs X’s financial assessment. Mr Z said they paid the last care home invoice on 15 March, covering up to 17 April, and Mrs X’s capital was at £24,260.440 after this payment. The Council planned to check this with the care home and backdate Mrs X’s care charges to 17 April.
34. The care home said Mrs X’s payment on 15 March only covered charges up to 31 March, not up to 17 April, and it received no further payments. This meant the Council would bill Mrs X full costs for her care for a couple of weeks until her capital dropped below the upper limit, then charge her an assessed contribution based on her income.
35. The Council wrote to Mr Z on 8 August following the financial assessment discussion. It asked for finance documents. It also attached a fact sheet on the financial assessment process, including the capital limits and details on paying a contribution towards residential care.
36. Mrs X sadly passed away later in August.
37. The Council emailed Mr Z on 25 August following a telephone call with him. It expressed condolences for the loss of Mrs X. It said it had earlier agreed to partially fund Mrs X’s care from 16 May 2023, which it could now backdate to 17 April. However, that would not account for the care home’s bill of £7,810.71. The Council said it would wait to hear back from Mr Z once he had reviewed Mrs X’s bank statements to find out if she fell below the upper capital limit on 24 February 2023 as he thought she did.
38. Mr Z sent the Council bank statements on 31 August. He said he approached the Council about Mrs X nearing the threshold in February, and if it acted promptly the situation could have been resolved before Mrs X passed away.
39. The Council emailed Mr Z on 1 September after speaking to the care home. It said Mrs X’s family paid the care home until 15 March 2023 (covering up to 31 March) but made no further payments after. The Council said it had agreed to pay the care home from 17 April 2023 (when Mrs X’s funds fell below the upper capital limit), but it will now arrange back payment from 1 April, so the care home is paid. The Council said it needed to calculate Mrs X’s contribution for this period, and it would advise the family.
40. The Council wrote to Mr Z on 12 September with a copy of Mrs X’s financial assessment. It said it would charge Mrs X the full costs of £842.97 per week for the period from 1 April to 16 April 2023. The Council calculated Mrs X’s capital would fall below the upper capital limit from 17 April, and she would then have to pay an assessed charged. It calculated her assessed weekly charges between 17 April and 14 May were £358.44. And her assessed weekly charges between 15 May and 21 August were £256.69. The Council said it would issue an invoice shortly covering the period between 1 April and 21 August 2023.
41. The Council sent an invoice to Mrs X’s family on 26 September 2023 for £6,954.21. This was split into three periods. £1,926.79 at full costs between 27 March and 16 April. £1,433.76 between 17 April and 14 May. And £3,593.66 for the period between 15 May and 20 August.
42. Mr Z complained to the Council on 4 October 2023. He said:
• The family did not accept the financial assessment, and the Council should pay Mrs X’s care charges in full.
• He contacted the Council on 24 February 2023 when Mrs X’s finances were nearing the £23,250 threshold, but it took no action.
• Mrs X’s bank balance fell below the threshold on 15 March, not 17 April.
• The Council did not meet with Mrs X and her son Mr W until 25 April. The Council officer provided no financial clarity at that meeting.
• Mr W emailed the Council on 4 May, asking it to confirm it would settle all fees directly with the care home. The Council confirmed it would.
• The Council’s email from 17 May said it was waiting for the financial assessment team to confirm how much Mrs X must contribute, and it would backdate payments to the point Mrs X was under the threshold. The family interpreted this to mean the Council would pay all care home fees after Mrs X reached the threshold.
• The family chased the Council for a financial assessment, but Mrs X passed away before the Council made a decision.
• The Council’s letter and invoice from 12 September gave no legal basis or explanation why Mrs X should contribute after reaching the financial threshold.
43. The Council sent its stage one complaint response on 26 October 2023. It said:
• Mr Z approached the Council on 24 February. It allocated the request to an officer on 23 March, and the officer contacted Mr W on 4 April. It apologised for the delay allocating the case.
• The meeting on 25 April was to assess Mrs X’s eligibility for care and support. The officer advised they would make a referral for a financial assessment to calculate Mrs X’s contribution to her care. The Council said it also confirmed this to Mr W on 4 April.
• During the meeting on 25 April, the officer advised there was a top up fee of £125 a week, which Mrs X’s family objected to. The officer said they would need to discuss this with a manager.
• The officer’s emails on 4, 5, and 17 May could have been worded better. It apologised for this. It said it would feed this back to the officer. However, it felt they gave financial clarity.
• It was correct the Council would pay the care home directly, but then it would bill Mrs X for her means tested contribution. It said the officer did advise this. They also said Mrs X still awaited a financial assessment to determine her contribution.
• It was an option for Mrs X to move to another care home, but the family’s wish was for her to stay at the care home and have help with funding from the Council.
• Its financial assessments were carried out in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014, the Care and Support Statutory Guidance, and the Care Act 2014.
• It asked its financial assessment team to complete an assessment on 2 May 2023. However, due to a backlog, it did not carry out the assessment until 8 August. It apologised for the delay.
• The officer explained during the assessment that Mrs X would have to pay full costs for a few weeks, reducing to an assessed charge.
• While Mrs X’s capital fell below £23,250 on 15 March, this was after paying care home fees, and she had not yet received her income for that month.
• The Council recognised some of its communication could have been clearer, but it was satisfied it provided enough information for the family to make informed decisions about Mrs X’s care. It also said it introduced an online form providing an estimate of what someone might pay while they wait for an assessment. This provides information for people to make an informed decision.
44. Mr Z wrote to the Council on 8 November asking to take their complaint to stage two. He said:
• The family did not accept the Council’s apology or the result of their complaint.
• The Council gave no advice during the meeting on 25 April that Mrs X would face financial liability after reaching the upper capital limit.
• Whatever discussion there was on 25 April, this did not alter what the Council said in its emails on 4, 5, and 17 May. He accused the Council of misrepresenting those emails.
• If the Council clearly explained its position during the meeting on 25 April, Mrs X may have chosen alternative accommodation.
• The Council only referred to the law and guidance in general terms, and had not cited any specific sections stating someone should contribute to the cost of their care after falling below the upper capital limit.
45. The Council sent its final complaint response on 18 December 2023. It said:
• It exercised discretion to waive the top up fee for Mrs X’s care home, and this negated the need to explore alternative accommodation. It also gave her continuity of care.
• The emails exchanged in May show Mr Z understood there would be a contribution for Mrs X to make for her placement at the care home.
• A person’s contribution is based on their weekly income, minus a standard allowance. The relevant section of the Care Act is section 8.
• The financial assessment team made a slight error in their calculations for the first two weeks, so the Council would correct this.
• It apologised for the time taken between the referral for a financial assessment and the assessment being completed.
46. The Council wrote to Mrs X’s family on 13 May 2024 confirming it reduced the outstanding balance by £410.48, after removing the top up fee. It said the remaining balance to pay was £6,543.73. It attached an invoice, but unfortunately this had not been altered, and still showed the previous amount of £6,954.21.

Analysis

47. The Council accepted it delayed first allocating Mrs X’s case in February 2023. This in turn resulted in a delay referring Mrs X for a financial assessment.
48. The Council also accepted there was a delay completing Mrs X’s financial assessment. The Care Act 2014 does not specify a timeframe in which councils should complete a financial assessment. However, our view is that it should be completed within an appropriate and reasonable timeframe, in line with the requirements set out in the Care and Support Statutory Guidance (paragraph 6.29). This allows people to know how much they may need to contribute to the costs of their care at the relevant time, so they can make an informed choice about what they want.
49. It took the Council about five months to complete Mrs X’s financial assessment, from the point of referral. That was too long and amounts to fault. This caused Mrs X and her family frustration and uncertainty. It also meant they could not make an informed choice about Mrs X’s care at the relevant time. The Council was aware it had a backlog, and should have told Mrs X’s family about this.
50. When Mr Z contacted the Council in July 2023, he said the Council decided it would meet the full costs of Mrs X’s care.
51. There was a misunderstanding here. While the Council had agreed to fund Mrs X’s care from 16 May, that meant it was taking over responsibility for the payments, so Mrs X’s family no longer had to pay the care home directly. It did not mean the Council agreed to pay for Mrs X’s care, and I found no evidence the Council said Mrs X would have nothing to pay.
52. I found the Council told Mrs X’s family it needed to complete a financial assessment. It also told them this was a means tested process, and that it needed to determine Mrs X’s contribution once her finances fell below the upper capital limit.
53. However, following the meeting the April 2023, I would expect the Council to write to Mrs X’s family to confirm what was said, and to explain the financial assessment process and timeline. I have not seen evidence the Council sent any written information to Mrs X or her family about the financial assessment process, or the way it calculates charges, either at the outset or at an appropriate time to allow the family to make an informed decision. That was fault.
54. The Council sent its financial assessment fact sheet to the family on 8 August 2023, after discussing Mrs X’s financial assessment. By that stage, almost six months had passed since Mrs X’s family first contacted the Council for support with her care. The Council should have provided this information much sooner, preferably when it referred Mrs X for a financial assessment in April. That would have given the family proper notice, and would have meant they could make an informed decision about Mrs X’s care going forward.
55. The Council’s failure to provide Mrs X or her family with information about how much the care was likely to cost in advance, and its failure to provide a financial assessment within a reasonable time, meant Mrs X’s family lost the opportunity to make an informed decision about whether she remained in the same care home or looked for a cheaper alternative. The family also experienced the distress of receiving a large bill, at what was already a distressing time after Mrs X passed away. This is their injustice.
56. We can decide what we think is more likely than not to have happened but for any fault to determine the extent of the injustice. In this case, I considered whether, but for the fault, Mrs X and her family would have chosen to move care home. On balance, I do not consider there is enough evidence to say they would have.
57. That is because, first, Mrs X’s family said they wanted Mrs X to stay in the same care home and receive help with payment. That is what happened. The rate the Council charged is significantly lower than the rate Mrs X was paying the care home direct. Second, the Council’s notes make clear it would not have been in Mrs X’s best interest to move. She had been in the care home for several years, and had complex care needs, including 24-hour care and nursing care. Lastly, the Council agreed a reduced rate by waiving the top up fee, so I do not consider it is likely another care home could have met Mrs X’s needs at a low enough cost to persuade the family to move her.
58. The Council was entitled to charge Mrs X for her care and support. It is also entitled to pursue outstanding care charges from a person’s estate after they die. Mrs X received the care, and since I found no clear evidence of quantifiable loss, I therefore will not recommend the Council waive or reduce the care charges.
59. I would usually ask the Council to provide Mrs X a symbolic financial remedy for the distress and frustration its failings caused. However, the Ombudsman does not recommend personal remedies for someone who has died. We also do not expect councils to make symbolic payments to someone’s estate.
60. As I found Mrs X’s family also suffered frustration and distress as a result of the Council’s failings, I recommended the Council provides the family with a symbolic financial remedy.

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Action already taken by the Council

61. The Council has now introduced an online form providing an estimate of what someone might pay while they wait for a financial assessment. The Council should ensure it signposts people to this at the earliest opportunity.

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Agreed Action

62. Within four weeks of my final decision, the Council will:
• Apologise to Mrs X’s family for its delays completing a financial assessment, and for its failure to provide clear written information about charging and the assessment process at the relevant time.
• Pay Mrs X’s family £200 (care of Mr Y) for the avoidable frustration and distress its delays and lack of clear written information caused.
63. Within three months of my final decision, the Council will:
• Review its financial assessment procedures in light of this decision to identify areas where it can improve practice. This should include deciding at which stage it will send written charging information to people, and highlighting any systemic issues leading to delays and consider ways to reduce wait times.
64. The Council should provide us with evidence it has complied with the above actions.

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Final Decision

65. I found the Council at fault for delays completing Mrs X’s financial assessment and for failing to send clear written information about charging and the assessment process at the relevant time. The Council agreed to provide Mrs X’s family a symbolic financial remedy for the frustration and distress this caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman