North Yorkshire County Council (18 004 915)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 03 Jun 2019

The Ombudsman's final decision:

Summary: Ms X complains the Council wrongly required her late father to pay his full care home fees after his capital had fallen below the upper capital limit. The Council’s failure to fund Mr Y’s care home fees when his actual capital fell below the upper limit amounts to fault. This fault caused Mr Y an injustice which cannot be remedied as he has since died.

The complaint

  1. The complainant, whom I shall refer to as Ms X complains the Council wrongly required her late father to pay his full care home fees after his capital had fallen below the upper capital limit.

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The Ombudsman’s role and powers

  1. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. If we are satisfied with a council’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

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by Ms X;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • discussed the issues with Ms X;
    • sent a statement setting out my draft decision to Ms X and the Council and invited their comments.

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What I found

  1. The Care Act 2014 and the associated Care and Support Statutory Guidance ("the guidance") set out the rules the Council must follow when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
  2. In assessing what a person can afford to contribute a local authority must apply the upper and lower capital limits. The upper capital limit is currently set at £23,250 and the lower capital limit at £14,250. People who have over the upper capital limit are expected to 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. Any capital below the lower limit should be disregarded.
  3. The guidance states that in some circumstances a person may be treated as possessing a capital asset even where they do not actually possess it. This is called notional capital. Notional capital may be capital which:
    • would be available to the person if they applied for it;
    • is paid to a third party in respect of the person; or
    • the person has deprived themselves of in order to reduce the amount of charge they have to pay for their care.
  4. A person’s capital should therefore be the total of both actual and notional capital.

Key facts

  1. Ms X’s father, Mr Y moved to a care home in 2009. As Mr Y’s capital was above the upper limit he was responsible for the full cost of his care. Ms X had power of attorney and assisted Mr Y with his finances.
  2. In July 2016 Ms X asked the Council for assistance as Mr Y’s capital would soon fall below the upper limit. A social worker assessed Mr Y’s care needs in August 2018. A benefits and assessment officer then met with Ms X in September 2016 to carry out a financial assessment.
  3. Mr Y’s bank statements showed his capital was a little over the upper limit. The officer was unable to complete the assessment as Mr Y’s bank statements showed significant gifting of capital over several years. Ms X told the officer her mother had left half of the parental home to her in her will. Ms X did not take her share when the property was sold, and all of the proceeds of sale were put into Mr Y’s bank account. Ms X then withdrew money from Mr Y’s account over the following years. The officer referred the case to their manager who referred it to the Council’s legal department. The officer advised Ms X that the Council may not fund Mr Y’s care home fees.
  4. The legal department responded in March 2017 and recommended a safeguarding investigation into possible financial abuse. A social worker visited Mr Y to discuss the discrepancies in his bank accounts, but Mr Y could not follow what was being said and asked to stop the conversation.
  5. The Council held a strategy meeting and officers agreed there needed to be further safeguarding enquiries focussing on the extent of the money Mr Y had been deprived of and the opportunities for repaying this. Officers then held a case conference in early July 2017. They remained concerned that Ms X had taken money from Mr Y which she was not entitled to. Officers agreed further enquiries were needed regarding Ms X’s entitlement to the proceeds of sale.
  6. Following this meeting, the Council asked Ms X whether she would give up her role as Mr Y’s attorney given the concerns about how Mr Y’s finances had been managed. As Ms X did not agree, the Council contacted the Office of the Public Guardian (OPG) about suspending or cancelling the power of attorney.
  7. The OPG arranged to visit Mr Y to assess his mental capacity to manage his finances. They concluded that Mr Y had capacity to make decisions about his finances. The OPG advised the Council that Mr Y had confirmed he was happy for Ms X to continue as his attorney.
  8. The Council’s records state that by a second case conference in August 2017 it was clear Ms X had deprived Mr Y of over £50,000. Officers asked Ms X to repay the monies and sought to clarify the police’s involvement.
  9. A social worker and the benefits and assessment officer visited Mr Y at the care home in early November 2017. Ms X also attended this meeting. The records of this meeting show the social worker explained to Mr Y that Ms X had taken £54,000 more than her share of the proceeds of sale from his bank account. Mr Y said he had not given Ms X permission to use his money for herself and had not known about the withdrawals.
  10. The social worker visited Mr Y again at his request with copies of his bank statements. The social worker asked Mr Y whether he wanted Ms X to continue to manage his money. Mr Y agreed he wanted the local authority to manage his finances.
  11. A police officer visited Mr Y in March 2018 to discuss his understanding and views on the money Ms X had taken from his account. Mr Y did not want to make a complaint about Ms X, so the police would not pursue the matter.
  12. The Council calculated that had Ms X only taken the half share of the proceeds of sale she was entitled to Mr Y’s capital would have fallen below the upper limit by 22 March 2018. Mr Y continued to pay his full care fees until this date, and the Council then began paying the care home directly.
  13. Based on Mr Y’s income and savings, the Council assessed his contribution towards the cost of his care from 22 March 2018 would be £262.98 per week. It would then reduce to £117.45 per week from 21 April 2018 and increase to £121.13 per week from 14 May 2018.
  14. The Council continued to pay Mr Y care home fees until his death on 14 July 2018.
  15. The Council completed its safeguarding investigation and invited Ms X to the final meeting in August 2018. Ms X did not attend the meeting. The outcome of the safeguarding investigation was that:
    • Ms X withdrew large amounts of money that were not used for Mr Y’s benefit;
    • Mr Y was dressed in second-hand clothes as Ms X did not provide him or the home with means to buy any clothes and he had no access to a personal allowance; and
    • There was no evidence Mr Y had been able to give informed consent regarding how his money was being used and didn’t have access to his bank account statements.
  16. The Council concluded, on the balance of probabilities, that Ms X committed financial abuse against Mr Y.
  17. Ms X made a formal complaint to the Council about the way it had dealt with her request for assistance with Mr Y’s care fees. She asked the Council to reimburse the fees he had paid since 2016 when his savings fell below the upper limit.
  18. The Council received Ms X’s complain in early July 2018, but did not respond until late November 2018. It apologised for the delay in responding. The Council confirmed it had not been able to complete the financial assessment in 2016 because of the safeguarding concerns. The Council did not agree to fund Mr Y’s placement in 2016 and would not now backdate this funding.
  19. The Council also confirmed the safeguarding threshold was different to the criminal threshold that the police need to meet. The Council investigates and considers the facts on the balance of probabilities. This can lead to discrepancies between the outcomes of police and safeguarding investigations.
  20. Ms X is unhappy with the Council’s response and has asked the Ombudsman to investigate. In response to my enquiries the Council states it did not agree to fund Mr Y’s care in 2016 as there had been large sums of “gifting” and there were safeguarding concerns relating to financial abuse. Mr Y was therefore responsible for the full cost of his care.
  21. The Council states that Mr Y’s assessed contribution for the period 22 March to 13 July 2018 totals £2568.52 and remains unpaid.
  22. The Council acknowledges there was a significant delay in responding to Ms X’s complaint. It states this was due to the complexities of the case and the ongoing safeguarding investigation.

Analysis

  1. In carrying out a financial assessment of Mr Y, the Council identified that large sums of money had been transferred from his bank account to Ms X’s. In these circumstances we would expect the Council to consider whether Mr Y knew of and agreed to these payments.
  2. The Council’s records show officers were satisfied Mr Y had not known Ms X was taking money from his account and had not given informed consent. The outcome of the safeguarding investigation was that Ms X had committed financial abuse against Mr Y. There is no suggestion the Council considered Mr Y had deliberately depreciated the value of his capital to reduce the amount he would have to pay for his care.
  3. Yet the Council assessed Mr Y’s entitlement to assistance with the cost of his care based on his actual capital plus a notional capital of £54,000. This may be appropriate had Mr Y deprived himself of this money to reduce the amount he had to pay for his care. But that is not the case here and amounts to fault.
  4. I also consider the delay in obtaining legal advice and commencing the safeguarding investigation amounts to fault. As does the length of time taken to complete the safeguarding investigation.
  5. Having identified fault I must consider whether this has caused an injustice. Had the Council assessed Mr Y’s finances based on his actual capital and income he would have been entitled to assistance in 2016. The failure to do so caused Mr Y an injustice as he had to pay for his full care charges for longer than he should have. However, as Mr Y has died, I am unable to remedy this injustice to him.
  6. Ms X would like the Council to reimburse the fees Mr Y paid since his actual savings fell below the upper limit. I do not consider this appropriate in the circumstances as any money would go, via Mr Y’s estate, to Ms X who has already effectively had the benefit of these funds.
  7. I would however recommend the Council waive Mr Y’s outstanding contribution towards his care charges.

Agreed action

  1. The Council has agreed to waive Mr Y’s outstanding contribution towards his care charges of £2568.52.
  2. The Council should take this action within one month of the final decision.

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Final decision

  1. The Council’s failure to fund Mr Y’s care home fees when his actual capital fell below the upper limit amounts to fault. This fault caused Mr Y an injustice which cannot be remedied as he has since died.

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Investigator's decision on behalf of the Ombudsman

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