Poole Borough Council (18 015 283)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 24 Jun 2019

The Ombudsman's final decision:

Summary: There was fault in the way the Council assessed Mr B’s finances when he went into a care home. The Ombudsman has recommended the Council apologises and re-assesses Mr B’s finances from May 2017.

The complaint

  1. Mr C complains on behalf of his father, Mr B who lives in a care home. His mother, Mrs B, is a joint complainant.
  2. Mr B makes a contribution from his income to his care costs. Mr C and Mrs B say the Council has made mistakes in its financial assessment to calculate this contribution.

Back to top

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)

Back to top

How I considered this complaint

  1. I have discussed the complaint with Mr C. I have considered the documents he and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.

Back to top

What I found

Law and guidance

  1. 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.

Capital and income

  1. If a person needs residential care, the Council will assess their capital and income. The upper capital limit is currently set at £23,250. The value of a person’s property is disregarded as capital if a qualifying relative such as a spouse lives in the property.
  2. Regardless of capital, residents will also have to pay a contribution from their income towards the fees.

Couple’s income

  1. The Guidance says:
    • The council can only consider the income of the cared-for person in the financial assessment. Where this person receives income as one of a couple, the starting presumption is that the cared-for person has an equal share of the income. A local authority should also consider the implications for the cared-for person’s partner.

Personal expenses allowance

  1. The local authority must leave the person with a minimum amount of income. This is known as the Personal Expenses Allowance (PEA) and the amount (£24.90 per week) is set out in regulations and updates sent via a local authority circular. Councils may take anything above this into account in determining charges.
  2. There may be some circumstances where it would not be appropriate for the local authority to leave a person only with the PEA after charges. The Guidance provides examples and I have included those that are relevant to Mr B’s complaint:
    • Where a person is paying half their pension to a spouse who is not living in the same care home, the local authority must disregard this money.
    • Where a person is temporarily in a care home and is a member of a couple, the local authority should disregard any Income Support or Pension Credit awarded to pay for home commitments and should consider the needs of the person at home in setting the personal expenses allowance. It should also consider disregarding other costs related to maintain the couple’s home.
    • Where a person’s property has been disregarded, the local authority should consider whether the PEA is sufficient to enable the person to meet any resultant costs. For example, allowances should be made for fixed payments (like mortgages, rent and council tax), building insurance, utility costs (gas, electricity and water, including basic heating during the winter) and reasonable property maintenance costs.

Temporary resident

  1. Definition:
    • A temporary resident is a person whose need to stay in a care home is intended to last for a limited time and where there is a plan to return home. The person’s stay should be unlikely to exceed 52 weeks.
    • In some cases a person may enter a care home with the intention of a permanent stay but a change in circumstances could result in it being temporary. In such cases the local authority should treat the person as temporary from the date of admission for the purposes of charging.
    • A stay which was initially intended to be temporary could become permanent. In such cases, the financial assessment of the person as a permanent resident should only be from the date that the care plan is amended and agreed with the person and/or their representative.
  2. Income and earnings should be treated in the same way as for permanent residents, but further guidance applies such as:
    • Any additional amounts the person may need so they can maintain their home during their temporary stay so that it is in a fit condition for them to return to must be disregarded. Such expenses may include, but are not limited to, ground rent, service charges, water rates or insurance premiums.

What happened

  1. Mr B moved into a care home on 22 May 2017. He had suffered a traumatic brain injury and needed support in all aspects of his daily life. The plan was for Mr B to live in the care home permanently.
  2. Mrs B and Mr C continued to live in the house that was owned by Mr and Mrs B.
  3. The Council assessed Mr B’s needs and his finances in May 2017.
  4. It disregarded his property as capital for the purpose of charging as Mrs B and Mr C were living in the property. Mr B’s other capital was below the threshold of £23,250. Mr B received an income of £165 a week through a retirement pension and a personal pension. The Council said Mr B should contribute £145 a week to his care costs, after deducting the personal allowance of £24.90 and the savings credit disregard of £5.75.
  5. Mr C wrote to the Council in November 2017 and said the Council should increase Mr B’s PEA as it had not properly considered the expense of maintaining the home in its financial assessment. Mrs B was struggling to pay the bills without Mr B’s income.
  6. In January 2018, the social worker re-assessed Mr B and said he had made some improvement so that it was possible that he may return home in the future. The Council therefore decided to treat Mr B as a temporary resident from 15 January 2018.
  7. The Council replied to Mr C in February 2018. It said that for temporary residents, it could allow additional amounts to maintain the home. It applied a standard disregard of £2.50 per week, but this could be higher if Mr C provided evidence of the costs. It asked Mr C to provide documentary evidence of any costs he wanted the Council to consider.
  8. Mr C responded in April 2018. He said:
    • He and Mrs B were struggling with health problems.
    • The hallway and the kitchen needed redecorating.
    • Mrs B needed regular breaks because of the emotional distress.
    • He included evidence of his wages but said he had large debts to pay off.
    • He included evidence of the monthly bills.
  9. Mr C wrote a letter of complaint in May 2018 and said:
    • Mr and Mrs B’s income was not separate in any way. Mrs B needed this income to maintain the house and she could not be expected to contribute to the care fees.
    • Mrs B rang Mr B regularly, but the Council had not accounted for this cost.
    • The Council made an incorrect assumption about savings credit in its financial assessment of Mr B.
    • The Council should have allowed a 50 percent disregard for Mr B’s pension.
    • The Council’s replies to his complaints were too slow.
  10. The Council replied in May and June 2018. It said:
    • It had based Mr B’s contribution on his income only. The starting point for a couple’s income was that the cared-for person had an equal share of the income.
    • Mr B was classed as a temporary resident from 15 January 2018. This meant the Council could allow an additional amount of £4.60 a week based on the bills Mr C had sent. This included half of the house insurance bill and the electricity and gas standing charges. It pointed out that, as Mr C paid a third of the bills, it could have only allowed one third for Mr B’s allowance but chose to allow half.
    • It did not allow a charge for actual use of utilities or phone charges as Mr B was not living at home. It did not allow the council tax as this was based on Mr C’s earnings.
    • It had no duty to pay for Mrs B’s breaks.
    • It agreed there had been an error in the assumption of the savings credit but pointed out the family could have questioned this earlier. It recalculated the savings credit to May 2017 and paid a refund of £330.
    • Mrs B was in receipt of pension credit since Mr B went into a care home. If half of Mr B’s pension was paid to her, then her pension credit would be reduced by the same amount. Therefore, her income would not increase by receiving half of Mr B’s pension.
    • The Council said it had responded within a month to Mr C’s complaints except for his complaint of November 2017 which it did not respond to until February 2018. It apologised for this delay but said the adjustment could not be processed until the Council made the decision on 15 January 2018 to treat Mr B as a temporary resident.
  11. In its response to the Ombudsman, the Council said:
    • It was its policy to check whether someone would be better off claiming pension credit or accessing half of their spouse’s pension when the spouse moved into a residential home. In Mrs B’s case, pension credit was the best way to maximise her income and Mrs B started to receive pension credit as a result of the Council’s advice.
    • Mr B would not be moving back home after all, so he was in a permanent placement. This may result in an increase to his contribution.

Analysis

  1. I have considered whether the Council has acted in line with the law and guidance and has taken the appropriate factors in consideration. I cannot, of course, say what Mr B should pay. Only the Council can do this, based on an assessment of his needs and his finances.
  2. The Guidance says that, when one person in a married couple goes into a care home, the Council should consider the implications for the cared-for person’s partner. It also says that, where a person’s property has been disregarded, the Council should consider whether the PEA is enough to enable the person to meet any resultant costs.
  3. There was no fault in the Council’s starting position which was to consider Mr B’s income as separate from Mrs B’s income for the purpose of the financial assessment.
  4. The Council considered what impact Mr B’s move into a care home had on Mrs B’s income. It gave her the correct the advice to apply for pension credit which she did. Therefore, I find no evidence of fault.
  5. I also find no fault in the way the Council has assessed the entitlement of Mrs B to half of Mr B’s pension. It said an increase in Mrs B’s income would result in an equivalent decrease in her pension credit. If that was the case, then I agree there would be no point in Mr B giving Mrs B half his pension as her income would remain the same.
  6. However, I find no evidence that it considered the other implications of Mr B’s move in May 2017. As Mr B’s property was disregarded in its calculations, the Council should have considered whether the PEA was sufficient to enable Mr B to meet any resultant costs. The Guidance says the Council should have made allowances for fixed payments (like mortgages, rent and council tax), building insurance, utility costs (gas, electricity and water, including basic heating during the winter) and reasonable property maintenance costs. Its failure to consider this in the financial assessment in May 2017 was fault.
  7. In May 2018 the Council re-assessed Mr B’s finances from 15 January 2018. It did so because it said he was a temporary resident from that date and because of Mr B’s complaint. This re-assessment should have happened in January 2018 when it assessed Mr B as a temporary resident and the delay is fault.
  8. Also, the Guidance says that, when a person enters a care home with the intention of a permanent stay, but this then becomes temporary, it should treat the person as temporary from the date of admission for the purposes of charging. Therefore, the Council should have re-assessed Mr B as a temporary resident from May 2017 and its failure to do so is further fault.
  9. The Council has a lot of discretion in deciding how much it will increase the PEA by. However, it must consider the appropriate factors. I note the Council has allowed half the house insurance costs and the standing charges for utility bills which is in line with the Guidance. The Council has considered the cost of Mrs B’s breaks and the cost of telephone calls but it has explained that, as these costs are not related to maintaining the house, it has decided not to include them in its calculations on Mr B’s finances. The Ombudsman cannot question the merit of a decision if there is no fault in the way the decision was reached.
  10. In terms of the property maintenance costs, the Council says it asked Mr C to provide evidence of any maintenance costs in its letter dated February 2018, but Mr C has not done so. If Mr C has any evidence of the maintenance costs, he should give it to the Council so that the evidence can be considered during the review.
  11. In terms of delay to the complaint response, the Council has already apologised for the delay between Mr B’s complaint in November 2017 and the Council’s response in February 2018. The Council’s response says this delay was unavoidable as it could not review the financial assessment without the decision about Mr B’s status as a temporary resident. I disagree as the Council’s initial financial assessment in May 2017 did not take into consideration all the factors it should have done, even if Mr B was a permanent resident. Therefore the Council had a duty to re-assess Mr B’s finances regardless of whether Mr B was a temporary or permanent resident.

Agreed action

  1. The Council has agreed to take the following actions within one month of the final decision:
    • Apologise in writing to Mr and Mrs B and Mr C.
    • Review its financial assessment of Mr B from May 2017 and repay any money Mr B was entitled to from that date.

Back to top

Final decision

  1. 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

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Privacy settings