Cornwall Council (18 007 799)
The Ombudsman's final decision:
Summary: There was fault in the way the Council assessed Ms B’s needs for care and support and in the way it decided that it did not have to provide her with support. The Council has agreed to apologise to the family, carry out a financial assessment of Ms B and, depending on the outcome of the assessment, repay Ms B’s estate any money it owes.
The complaint
- Ms C complains on behalf of her mother, Ms B, who has sadly passed away. She says the Council failed to properly assess Ms B’s care needs and to provide support.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
How I considered this complaint
- I have discussed the complaint with Ms C’s solicitor. I have considered the documents she and the Council have sent, the relevant law, guidance and regulations and the Council’s own policies and both sides’ comments on the draft decision.
- I have investigated events that are over a year old as the complaint continued for several years and it was in the public interest to investigate the complaint.
What I found
Law and guidance
Adult social care
- The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge.
Duty to assess
- The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs and a personal budget which calculates the costs of those services.
Eligibility threshold
- The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. Council must consider whether:
- The adult’s needs arise from a physical or mental impairment or illness.
- As a result of the adult’s needs the adult is unable to achieve 2 or more of the specified outcomes (for example: maintaining nutrition, personal hygiene, managing toilet needs, appropriate clothing, safe use of the home and so on).
- As a consequence of being unable to achieve these outcomes there is a significant impact on the adult’s wellbeing.
- An adult’s needs are only eligible where they meet all 3 of these conditions.
Funding
- If a person needs residential care, the Council will assess their capital and income. The upper capital limit is currently set at £23,250 and the lower limit at £14,250. A person with assets above the upper capital limit will have to pay for their own care. Those with capital between the upper and the lower limit will make a contribution known as ‘tariff income’ from their capital.
- Regardless of capital, residents will also have to pay a contribution from their income towards the fees.
- The NHS is responsible for meeting the cost of any care provided by nurses to residents in care homes. This is NHS funded nursing care.
Restrictions on support to migrants
- There are two important restrictions on providing social services support to people with no recourse to public funding.
Immigration and Asylum Act 1999 section 115
- Section 115 applies to people who:
- require leave to enter or remain in the UK but do not have it;
- have leave to enter or remain subject to a condition that they have no recourse to public funds;
- have leave to enter or remain subject to their sponsor agreeing to be responsible for their maintenance and accommodation;
- have leave to enter or remain only on the basis that they are going through certain forms of appeal.
National Immigration and Asylum Act 2002 section 54 and schedule 3
- Section 54 and Schedule 3 apply to people who:
- have refugee status granted by a non-UK EEA country and any of their dependents;
- are non-UK EEA nationals and any dependents;
- are failed asylum seekers who have failed to comply with removal directions;
- are unlawfully present in the UK but are not asylum seekers;
- are failed asylum seekers with family who have not taken reasonable steps to leave the UK voluntarily.
- People in the section 115 category must get over the restriction of section 21 of the Care Act which says a local authority may not meet the needs for care and support of an adult to whom section 115 applies if the need for care and support has arisen solely:
- Because the adult is destitute.
- Because of the physical effects of being destitute.
- Therefore, if a person has care and support needs related to physical or mental problems and not purely because they are destitute, then they are entitled to Council support subject to the same tests in terms of eligibility, finance assessment and so on.
- Support to people in the schedule 3 category is more restricted. Generally speaking, they will not receive support from social services, unless they can show that their human rights or EU treaty rights are engaged and severely impacted upon.
- The Care Act 2014 came into effect on 1 April 2015. It is my understanding that the legal provisions in terms of support to people with no recourse to public funding before the Act were similar to the provisions after the Act.
What happened
- Ms B is a US citizen who came to the UK in April 2012. Her daughter Ms C is a British citizen. Mrs B was frail and elderly and the plan was for her to live with her family. She sold her house in the US and had some savings. Ms B was granted indefinite leave to remain in the UK on 10 May 2013. This was on the condition that she had no recourse to public funding and would be financially supported by her sponsor, Ms C for five years.
- Ms B’s health deteriorated and she moved into a nursing home in April 2013. She self-funded the fees from her savings, her US pension and an attendance allowance. It is my understanding that she lacked capacity to make decisions about her finances although I have not seen a mental capacity assessment. The family did not hold a power of attorney for Ms B and I do not know how her finances were managed.
- The family contacted the Council in August 2013 about social care support. The Council contacted the UK Borders Agency (UKBA – now replaced by UK Visas and Immigration) for further advice. The Council asked, among other things whether the National Immigration and Asylum Act 2002 section 54 applied to Ms B.
- The person at the UKBA said she did not know section 54, nor the act. She said Ms B should have a biometric residence permit card with her condition code as ‘ILR’. She said the Council should have descriptions of what each condition code meant in terms of what support it could provide. In a second email, the UKBA officer forwarded advice from the DWP. The DWP adviser quoted the declaration the sponsor made and said it was their understanding this meant that the sponsor had to pay for social care.
- The Council sent an email to the family in October 2013 saying that Ms B was not entitled to community care services from the Council.
- There is a note from March 2014 which said Ms B received funded nursing care from the NHS.
- In October 2014 Ms C contacted the Council. She said Ms B had £17,000 left in savings. Ms C said she was unable to care for Ms B at home as she had disabilities herself. Ms B needed care in a nursing home as she needed two people at all times for transfers. The Council referred her back to the advice it gave in October 2013.
- It is my understanding Ms B continued to pay the fees until May 2015 when all payments stopped.
- Ms B instructed a solicitor. She wrote to the Council on 21 July 2015 asking for support for Ms B. She said:
- Ms B had exhausted her savings. She could no longer fund her care home fees and was at risk from eviction from the home.
- The restrictions on access to public funding set out in schedule 3 did not apply to Ms B, but section 115 did.
- The section 115 restriction did not include adult social care support.
- The Council therefore had a duty to assess Ms B’s needs for care and support and meet the needs if she met the criteria.
- In the meantime, the Council should take whatever action necessary to protect Ms B from eviction.
- The Council responded by asking for more information about Ms B’s immigration status. It wanted to see a copy of the sponsor’s declaration and the documentation provided in her immigration application.
- Ms B’s solicitors said that Ms B’s litigation friend had tried to obtain a copy of the sponsor’s declaration from the UKBA, but it would take 40 days to obtain this.
- The Council wrote to Ms B’s solicitors on 6 August 2015. It said:
- It agreed that Ms B was subject to the restrictions set out in section 115.
- It wanted to see documentation confirming the undertaking and confirmation of what steps Ms C had taken to support Ms B in line with the undertaking.
- It would carry out an assessment of Ms B’s care needs in line with the Care Act.
- Ms B’s solicitors wrote to the Council on 10 August 2015 and answered the question regarding the steps Ms C had taken to support Ms B. They said:
- Ms B lived with Ms C until it was impossible for her to do so.
- Ms B needed 24-hour nursing care which Ms C was not able to give, particularly as she herself was disabled and she was caring for her daughter who had a learning disability.
- Ms C had no savings and Ms B’s savings had been exhausted.
- Ms B’s solicitor wrote to the Council in September 2015 to explain why she could not send the UKBA documents. She said Ms B lacked mental capacity to give consent to the disclosure of the documents and nobody had a power of attorney for Ms B. She had asked the UKBA whether it would accept Ms C’s signature for the disclosure but had not received an answer. Therefore, she would have to make an application for disclosure from UKBA to the Court of Protection.
- On 16 October 2015, Ms B’s solicitor sent the Council a copy of Ms B’s residence permit and a letter from UKBA. She said UKBA may now be willing to disclose the documents so an application to the Court of Protection may not be needed.
- Ms B’s solicitors chased the Council on 18 December 2015 asking when the Council would carry out the assessment. It said it had reached a stalemate with UKBA and wanted to find out whether the Council could help in obtaining the information.
- Ms B’s solicitors chased the Council on 7 March 2016 as there was no response to their email dated 18 December 2015.
- Ms B sadly died on 30 April 2016.
- The Council carried out an assessment of Ms B’s needs. The assessment is dated 11 May 2016 but it is not clear when the assessment took place. The social worker said Ms B’s needs were due to a ‘physical or mental impairment or illness’. She referred to Ms B’s dementia, history of strokes and frequent urinary tract infections.
- The social worker said Ms B could not achieve any of the outcomes identified in the Care Act and needed support in preparing meals, drinks and snacks, eating and drinking, maintaining personal hygiene, managing her toilet needs, dressing and undressing and maintaining a habitable home environment. Ms B needed two people to move her. Ms B met all the requirements for eligibility of Council support under the Care Act.
- Ms C’s solicitors (who previously represented Ms B) chased the Council for a response on 4 November 2016 and informed the Council that sadly, Ms C had passed away.
- The Council responded on 23 November 2016 saying: ‘The Council’s position is that the outstanding fees are a private matter which is not the Council’s responsibility.’
- Ms C’s solicitors wrote to the Council again on 11 January 2017. It said the Council had a duty to pay Ms B’s fees if Ms B had eligible social care needs. Therefore, it was not a private matter as the Council claimed.
- They wrote again on 12 and 18 December 2017 as they had not received a reply to their letter. The Council replied on 10 April 2018 and said it had made its position clear. If Ms C was not satisfied with that response, she could make a complaint.
- Ms C’s solicitors complained to the Council on 12 July 2018. The Council said it could not respond to her complaint as it was outside the 12-month timeframe.
Council’s reply to the Ombudsman
- The Council accepted that Ms B was a person who was subject to the restriction set out in section 115, but was not prevented from receiving support under the Care Act.
- I asked the Council how it assessed whether it had a duty to provide support to Ms B under the Care Act.
- It said:
- Ms B had indefinite leave to remain with no recourse to public funding.
- Ms C was her sponsor and had provided evidence to the immigration authorities of her ability to maintain and accommodate Ms B. A failure to provide support was a criminal offence.
- The Council had a duty to meet eligible social care needs which were not otherwise met by alternative care. Ms B’s needs were met by the care at the care home which Ms C had to pay because of the undertaking she signed.
- The Council said this was a reasonable conclusion in the absence of receiving the information the Council had requested. It said Ms C or her solicitor had never taken issue with that position and had never provided the evidence Ms C provided to UKBA.
- The Council had never financially assessed Ms B. She may have had capital or income over the threshold and may therefore not be eligible for financial support.
- The family had not progressed the matter proactively and had delayed unreasonably despite having been advised of the information that was requested.
Analysis
- As I understand it, the Council’s main reason for not assisting Ms B was that Ms C had a duty to pay the care home fees because of the sponsor declaration. The Council also says the family failed to provide the information the Council asked for and delayed matters.
- I have considered the Council’s actions and whether it met its duties in line with the legislation, regulations and policies.
- The Council had a duty to assess Ms B’s needs for care and support and to meet any eligible needs, unless those needs arose solely because Ms B was destitute or because of the physical effects of the destitution.
- There was fault in the Council’s actions as it failed to meet its duties towards Ms B. It should have carried out an assessment of Ms B’s needs as soon as the family contacted the Council for help, in 2013 and again in 2015.
- The Council did not assess Ms B until May 2016 and this long delay is fault.
- The assessment dated concluded Ms B had eligible needs for care and support because of a ‘physical or mental impairment or illness’ referring to Ms B’s dementia, history of strokes and frequent urinary tract infections. These needs were not solely linked to her destitution.
- Therefore, the Council had a duty to meet these needs if a financial assessment confirmed that Ms B was eligible for Council funding.
- However, the Council failed to carry out any financial assessment of Ms B and this is also fault.
- I cannot say whether there is further fault in its failure to pay the care home fees. This will need to be decided by a financial assessment. However, if, as the family says, Ms B’s savings were below the threshold in October 2014, then there was further fault in the Council’s failure to pay the fees that it had a duty to pay.
- In terms of the requested documents and the alleged delay by the family, the Council asked the family to provide a copy of the sponsor’s declaration and the documentation confirming the undertaking. The family never provided this information because it said it had difficulty in obtaining the information from the immigration authorities.
- It is not clear why the Council was pursuing this information.
- Ms B’s immigration status was not in dispute. Ms B’s solicitor sent a copy of the immigration card in October 2015. There was no dispute that Ms C had signed the sponsor’s declaration. My understanding is that the declaration is a standard form so the Council would have known its content. Therefore, it is not clear why the Council had to see a copy of the declaration.
- That leaves the Council’s request to see the documentation confirming the undertaking. In my view, this information was irrelevant to the question of whether the Council had to support Ms B or not.
- What was relevant was the assessment of Ms B’s needs for care and support and the assessment of her finances. These would have determined any duties the Council had. I find no evidence the Council ever started the financial assessment of Ms B or asked her for the relevant evidence of her capital and income.
- I have considered the injustice suffered because of the fault.
- The family was worried that it would be held liable for the fees.
- The family may also have suffered a financial injustice but that is impossible to say without a full assessment of Ms B’s finances. If Ms B’s savings had reduced below the threshold of £23,250, then the Council should have started to pay the fees at that stage, subject to a contribution by Ms B.
Agreed action
- The Council has agreed to take the following actions within 1 month of the final decision. It will
- Apologise to Ms B’s family for the fault in writing.
- Carry out an assessment of Ms B’s finances. If this assessment determines that Ms B was eligible for Council funded care, then the Council should assess how much the Council should have paid subject to any contribution from Ms B. If, based on this calculation, the Council owed Ms B money at her death, it should repay Ms B’s estate this money.
- Ensure the relevant staff are aware of the Council’s duties towards people with no recourse to public funding and provide further training if necessary.
Final decision
- I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.
Investigator's decision on behalf of the Ombudsman