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West Sussex County Council (18 007 714)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 28 Mar 2019

The Ombudsman's final decision:

Summary: Mrs C complained the Council did not give proper support to her mother-in-law and family over the financial aspects of her mother-in-law going into residential care. The Ombudsman considers the Council was at fault in some respects but it did not cause significant injustice to Mrs X or her family.

The complaint

  1. Mrs C complained the Council’s social workers did not provide proper support to her mother-in-law and the family over the financial aspects of her mother-in-law going into residential care. Mrs C says the Council failed to carry out proper assessments and provide enough information about the funding of her mother-in-law’s care. She says this resulted in an invoice for more than £5,000 issued almost a year after Mrs X’s death.

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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. I have considered information from:
    • Mrs C’s complaint, a telephone conversation with her and documents she has sent me; and
    • The Council’s response to Mrs C through its complaints procedure and its responses to my enquiries.
  2. I have also considered:
    • The Care Act 2014
    • The Care and Support Statutory Guidance 2014 (“the Guidance”)
    • The Care and Support (Charging and Assessment of Resources) Regulations 2014 (“the Regulations”)
  3. I gave Mrs C and the Council the opportunity to comment on a draft of this decision. I have taken account of the comments received before making this final decision.

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What I found

  1. Where a council arranges care and support to meet a person's needs, it may charge the adult for the cost of the care. The Guidance and Regulations state that people who have over the upper capital limit (£23,250) are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
  2. Councils must assess the means of someone who has less than the upper capital limit, to decide how much they can contribute towards the cost of care in their own home or in a residential or nursing home. I refer to the amount decided from this process as the assessed contribution. A council must tell the person what their assessed contribution is.
  3. A council’s care and support planning process will identify how best to meet someone’s care needs. As part of that, the council must provide the person with a personal budget. The personal budget is the cost to the council of meeting the person’s needs which the Council chooses or is required to meet. If a person chooses to go into a home that costs more than the personal budget, and the Council can show that it can meet the person's needs in a less expensive home within the personal budget, it can still arrange a place at the home if the person can find someone else (a third party) to pay the top-up. The council needs to ensure the person paying the ‘top-up’ enters a written agreement with the council and can meet the extra costs for the likely duration of the agreement.
  4. In some circumstances, where someone’s primary needs are health care needs, the National Health Service (NHS) is responsible for meeting the full cost of someone’s care in a home. This is referred to as NHS Continuing Health Care (CHC) or fully funded health care.


  1. Mrs X had dementia and Parkinson’s disease. Her husband, Mr X, supported her at home to manage her daily social care needs. Mrs X also had a daughter, Ms B, and a son, Mr C. Ms B and Mr C had power of attorney to deal with Mrs X’s property and finances.
  2. Mrs X’s family started to privately fund a package of care to support Mrs X and her husband. Carers visited Mrs X four times a day.

Events February 2016 – May 2017

  1. In February 2016 the Council assessed Mrs X’s social care needs and Mr X’s needs as her carer. It agreed carers should visit Mrs X four times a day to support her personal care, toileting and meals. The Council also carried out a financial assessment to decide how much Mrs X should contribute to the cost of her package of care at home. The Council assessed her contribution as nil so the Council agreed to fund the care package.
  2. By April 2016 Mr X was finding it increasingly difficult to look after Mrs X and the family considered Mr X needed some respite from his caring role. The family arranged for Mrs X to go into a nursing home. The family did not discuss the placement with the Council. They say the social worker was away at the time and no-one else seemed willing to help. Once Mrs X was at the Home the family say they realised she could not go back to her own home.
  3. The Home’s weekly charge was substantially more than the Council’s rate. The Council agreed to pay the Home the Council’s rate from 18 April 2016 onwards. But that meant a third party top up was needed. The Council sent a third party agreement to Ms B asking her to sign it to say she agreed to pay the top-up needed at the Home. Ms B did not return this and no agreement was ever completed. The family never made any top-up payments.
  4. A social worker advised Ms B to contact the Council’s Welfare Benefits Advisers. Benefits advisers can advise whether someone is taking up all the benefits they are entitled to. Ms B contacted an adviser. She says the adviser asked if Mrs X’s financial circumstances had changed since the last financial assessment and
    Ms B said they had not. Ms B says the adviser then told her the original financial assessment would stand. The adviser recorded Ms B declined an assessment as there had been no change to Mrs X’s financial circumstances so Mrs X did not want to waste anyone’s time.
  5. At the end of May 2016 a Council officer emailed Mr C. The email said the financial assessment carried out already was for home care and respite care so another one was needed for residential/nursing home care. The Council received no response to this.
  6. In August 2016 a Council social worker started the process to decide whether
    Mrs X was eligible for CHC funding. Mrs C says she considers this should have started as soon as Mrs X moved into the Home. The Council says the social worker considered Mrs X did not have a primary health care need at that stage. It says the social worker started the process once Mrs X’s needs had increased significantly while at the Home. In September 2016 the social worker recommended Mrs X should be considered for CHC funding. However the NHS did not agree to this.
  7. In November 2016 the Council carried out another financial assessment for Mrs X based on the information Mrs X’s family had already provided in February 2016. On 17 November the Council wrote to Ms B to explain Mrs X’s assessed contribution towards her care. It said the Council had assessed Mrs X as having to pay £130.70 a week and she should pay this direct to the Home. Ms B says she never received this letter.
  8. The Council’s letter of 17 November 2016 contained one error in the address. The Council considers it is highly unlikely this would have prevented its delivery as all the other details, including Ms B’s name, street address and post code, were correct. It says Royal Mail did not return the letter as undeliverable and the Council is not aware of any delivery problems at the time.
  9. Mrs X never paid her assessed contributions towards her care at the Home .

Events November 2016 – May 2017

  1. By March 2017 the Home had for some time been chasing Mrs X’s family for debts due to non-payment of both top-ups and assessed contributions. In
    March 2017 Mr and Mrs C wrote to the Council and said they had asked the Home to send outstanding invoices for more than £15,000 to the Council. They said they were not able to pay because:
    • they considered Mrs X should have received CHC funding; and
    • there were no other homes available of a suitable standard at the Council’s rate.
  2. The Council started a reassessment of Mrs X’s needs in late April 2017. By then
    Mrs X was having end of life medication and treatment. Mrs X died in early
    May 2017.
  3. The assessor completed the reassessment later in May 2017. The reassessment document notes Mrs X’s outstanding arrears to the Home were about £25,000. It also recorded these issues about funding:
    • Mrs X’s family did not agree Mrs X should pay an assessed contribution towards her care because they thought she should be getting full CHC funding.
    • The family were appealing against the decision to refuse CHC funding and would pursue this until they got a backdated full payment for Mrs X’s care from the Health Service.
    • The assessor explained the Council’s charging policy and said the Council might take debt recovery action for the unpaid assessed customer contribution.
    • Ms B said she would not sign a third party top-up agreement although she was aware of the massive debt that had accumulated through not paying the top-ups.

The Council’s actions in March and April 2018

  1. In March 2018 the Council paid the Home £21,861.28 which covered an outstanding top-up contribution of £16,861.28 plus Mrs X’s assessed contribution of £5,260.10. The Council is not pursuing the unpaid top-ups.
  2. In April 2018 the Council billed Ms B for the £5620.10 unpaid assessed contributions - 301 nights at the Home at £130.70 a week. The bill is still outstanding.


  1. Mrs C considers the Council should have started the assessment process for CHC funding earlier than it did. She considers this may have affected Mrs X’s funding at the Home. I do not find fault with what the Council did. A social worker started the assessment when she considered it was appropriate. The NHS refused CHC funding and an earlier assessment would not have changed that outcome.
  2. I have seen no evidence that the Council explained to Mrs X’s family why a new financial assessment was needed in April 2016 when the Council had only just done one in February 2016. The reason was that, even though Mrs X’s financial circumstances had not changed, the significant change in the type of care she was receiving could result in her now needing to contribute to the cost of her residential care. The Council did not make this clear and that was fault.
  3. When there was no new financial assessment to work on, the Council decided to use the February 2016 figures to calculate Mrs X’s contribution to her care. The Council should have done this earlier than six months into Mrs X’s residence at the Home. The delay was fault. There was further fault when the Council’s letter to Ms B explaining the outcome of the assessment had an error in its address. The error was relatively minor but Ms B says she did not receive the letter and I cannot say the Council correctly told Ms B of the outcome at the time.
  4. However I cannot say that the Council’s failure to explain why another financial assessment was needed, its delay calculating Mrs X’s contribution to her care or the error in its letter to Ms B caused substantial injustice to the family or Mrs X. Mrs X kept her place at the Home for over a year despite a big debt building up because of unpaid top-ups and assessed contributions. The Council explained the finances to the family in April 2017 and the family made it clear they did not consider Mrs X should have to pay the assessed contributions. The Council explained it would consider debt recovery for the unpaid assessed contributions.
  5. The family can have been in no doubt that the Council might insist on recovering the unpaid £5620.10. It took the Council almost another year to bill the family for the money but it was entitled to do so.

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Final decision

  1. I have now completed my investigation. There was some fault by the Council but it did not cause substantial injustice to Mrs X or her family.

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Investigator's decision on behalf of the Ombudsman

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