Summary: There was fault by the Council as it delayed carrying out a financial and care assessment for one and a half years. Mr B, an adult with considerable care needs, remained in his placement and so there was no direct injustice to him. The Council has offered to waive the return of an overpayment, reduce the financial contribution and fund the cost of day care until the date of the financial assessment. The Council has also offered to recalculate the date Mr B became eligible for help with care costs as new accounts have been supplied.

The complaint

1. The complainant, whom I shall refer to as Mr B, is represented by Mr X, a trustee of Mr B’s trust. Mr B lives in a specialist home for adults with physical and mental difficulties. Mr X complains there was delay by the Council in accepting liability for Mr B’s care costs and carrying out a financial assessment.
2. Mr X also complains the Council's financial assessment is wrong in stating that Mr B fell below the upper financial threshold in January 2017. Mr X also complains the Council's care assessment for Mr B should include 5 days of day care rather than 2 days.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I read the papers put in by Mr X and discussed the complaint with him.
6. I considered the Council’s comments about the complaint and any supporting documents it provided.
7. I gave the Council and Mr X the opportunity to comment on my draft decision.

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What I found

8. Mr B has lived in a specialist home for adults with physical and mental difficulties for over 20 years. Mr B’s fees are paid by a trust, which includes damages from an accident.

Delay in carrying out care and financial assessment

Key facts

9. The Care Act 2014 came into force in April 2015. Section 12 of the Care and Support Regulations 2014 says that if the financial resources of the adult in permanent residential care exceed £23,250 the Council cannot pay towards the provision of accommodation in a care home. Section 15 of Schedule 2 of these regulations says that money from personal injury trusts would be disregarded.
10. Mr X informed the Council on 23 October 2016 that it believed that Mr B’s savings had dropped below the upper threshold (£23,250) and asked it to carry out a care needs and financial assessment.
11. The Council wrote to Mr X on 11 October 2017. It said the Council accepted its duty to assess Mr B’s care needs. The Council said it accepted that the personal injury part of the trust should be disregarded from the financial assessment.

My analysis

12. The Council has accepted there was a delay in carrying out the financial assessment, it was not completed until 1 June 2018. The Council has apologised and offered a remedy. It has said that it will not require Mr B to return a £731 overpayment. It has said that it will not increase Mr B’s financial contribution because of the savings he has between the lower and upper threshold. The Council has also offered to reduce Mr B’s financial contribution by £700, to £3028 to acknowledge the delay and inconvenience caused.
13. The delay by the Council was fault. There was no direct injustice caused to Mr B by the delay. He continued to receive his usual care and the Council has offered the equivalent of a payment of £1431 and has not charged interest on the amount he owes. I acknowledge, however, the delay was inconvenient for Mr X and the other trustees who have had to follow the matter up. I note the accounts show the trustees take fees from the trust, and I consider the reduction of the financial contribution of £700 will recompense the trust fund for any extra costs taken by the trustees. So, I consider the remedy already offered by the Council for the delay is satisfactory.

Incorrect Financial Assessment

Key facts

14. Mr B was responsible for paying for his care until his savings fell below £23,250. Mr X says that Mr B’s savings were below the upper threshold in October 2016. The Council says his savings fell below the upper threshold in January 2017.
15. Mr X explained that the figures he gave the Council originally assumed that Mr B had overpaid £75,000 for his care and this would be refunded. Mr X accepts that this is not the case but considers the calculations made by the Council will be wrong because of this.
16. The calculations to decide how much of Mr B’s capital was disregarded are complex. Mr X is an accountant and produces yearly accounts for the trust. The figures he supplied to the Council originally showed that Mr B had a capital balance of £410,528 on 1 April 2016.
17. I asked Mr X to supply the correct figures. These corrected figures show Mr B had a capital balance of £410,538 on 1 April 2016. This figure is almost identical to figure used by the Council previously so I do not consider it necessary to ask the Council to recalculate on this point for a difference of £10.
18. Mr B’s capital has grown from the original money in it due to investments and interest. Mr X proposed in his original letter to the Council that 82% of the capital should be disregarded as it was from the accident claim. The Council agreed on this point and calculated from Mr X’s figures that £377,769 of the capital should be disregarded. So, on 1 April 2016 Mr B’s capital was £32,759 and he was above the upper threshold at that point.
19. The Council then had to calculate the point at which Mr B’s capital fell below the upper threshold. The Council has calculated it to be 1 January 2017. Mr X says it should be 23 October 2016. This is a difference of 2 months, fees of about £8000. There is no guidance that determines exactly how the calculations should be carried out, it is up to the Council’s professional officers to make an assessment of the figures given to it.
20. The revised figures given to me show that Mr B’s total capital on 1 April 2017 was £404,423. However, the Council has carried out the calculations on the original figures which shows Mr B’s capital on 1 April 2017 as £474,413.

My analysis

21. I can find no evidence of fault in the Council’s actions, as its calculations were based on the figures given to it by Mr X. However, it does seem the figures used by the Council may not have been correct and as the Council has said it is happy to recalculate based on the new figures I think that would be a reasonable way forward. One way for this to be carried out would be for Mr X to calculate the value of Mr B’s capital on 23 October 2016 and to explain his calculations to the Council.

Care assessment

Key facts

22. The Council wrote to Mr X on 24 April 2018 with the outcome of the care assessment. This concluded that Mr B’s needs could be met by residential care at his current home, two days of day care services and four hours enabling support services. This was a reduction of three days of day care services. The Council considered that as the residential care home arranged activities for the residents included in the placement the Council was of the view that this, together with 2 days of day care would meet Mr B’s assessed needs. The social worker felt that Mr B may benefit from accessing services separate to day care to encourage variety into his daily routine. Or Mr B could continue to access the three additional days of day care but it would need to be privately funded by the trust.
23. The Council accepted that as it had delayed carrying out the financial assessment, it would fund the 5 days of day care up until the date of the financial assessment (1 June 2018). I consider this a reasonable remedy.
24. The care assessment for Mr B details his needs and explains that he was accessing day care 5 days week. However, the social worker noted that he could access activities in the residential home. So, her view was that 2 days of day care could meet Mr B’s assessed needs to access activities in the community, along with 4 hours support at the weekend.

My analysis

25. The social worker met Mr B and made a thorough assessment of his needs. The Council has agreed to support Mr B in his current placement, with the exception of the costs for 3 days of day care. I have looked at all the information and I can find no fault leading up to the social workers decision that two days of day care is adequate. It is clear that Mr B can access other the activities in the residential home. Mr B can also choose to pay for the day care in addition as well. So, on this point I find no fault by the Council.

Agreed action

26. The Council does not require Mr B to return a £731 overpayment (remedy already carried out).
27. The Council will reduce Mr B’s financial contribution by £700 to acknowledge the delay and inconvenience caused within one month of the date of the decision.
28. The Council will fund 5 days of day care up until 1 June 2018 (remedy already carried out).

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Final decision

29. I have completed my investigation of this complaint. This complaint is upheld, there was delay in carrying out the care and financial assessment. I consider the actions above remedy the injustice to Mr B.

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Investigator's decision on behalf of the Ombudsman