Bury Metropolitan Borough Council (18 015 876)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 26 Jun 2019

The Ombudsman's final decision:

Summary: Mr X complains the Council has failed to take responsibility for his mother’s (Mrs Y’s) care and support needs. He also complains he was given poor legal advice. He says this has led to financial difficulties, uncertainty and distress. The Council is at fault. The Council is currently responsible for Mrs Y’s care and support. It has agreed to write to all those involved to clarify its position, apologise to Mr X and pay him £500 to acknowledge the distress and uncertainty caused. It has also agreed to work with Mr X to agree the support required to meet Mrs Y’s needs and provide agreed support in line with the law and its policies. It will also provide guidance for staff. There is no evidence of fault in the legal advice it provided Mr X.

The complaint

  1. Mr X complains the Council has failed to take responsibility for his mother’s (Mrs Y’s) care and support needs. He also complains he was given poor advice when applying for a deputyship order. He says this has led to financial difficulties, uncertainty and anxiety about whether his mother can remain in her care home. He wants the Council to take responsibility for her care and support, agree an arrangement to enable the payment of outstanding care home fees and reimburse him additional costs.

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 read Mr X’s complaint and spoke with him about it on the phone.
  2. I made enquiries of the Council and considered the information it sent me.
  3. I gave Mr X and the Council the opportunity to comment on the draft decision. I considered their comments before making my final decision.

Back to top

What I found

Legal and administrative background

Assessment and provision of care and support

  1. The Care Act 2014 provides the legal framework for the assessment and provision of care and support for adults assessed by councils as having eligible needs. The Act is supported by several statutory regulations and the Care and Support Statutory Guidance (the Guidance).
  2. Councils have a duty to assess if a person has care and support needs, and if so, what they are.
  3. If they are assessed as having eligible needs, in some cases, the Council can charge the person for the cost of their care and support.

Charging for care

  1. The Care and Support (Charging and Assessment of resources) Regulations 2014 and the Care and Support Statutory Guidance set out how councils must calculate the amount an individual should contribute to their care. Councils decide whether to charge a person by completing a financial assessment.
  2. If a person has financial assets below £23,250, the council must meet their care and support needs, whether this be through a care home placement or other types of care.
  3. When a person has financial assets above £23,250, they are assessed as being self-funding and are required to pay all their care costs.
  4. If a person has financial assets above £23,250, a council’s responsibilities are different for those with needs which can be met at home or other settings, and those who needs are to be met in a care home.
  5. If the needs are met at home or other settings, the council has a duty to meet those needs, if requested. If the needs will be met by a care home, the person has the right to ask the council for help to arrange the care. The council may choose to meet the person’s needs, but it does not have to do so. If the council agrees to meet the need and arrange the care, it may charge the person an arrangement fee to cover the costs incurred. Where a council is meeting needs by arranging a care home, it is responsible for contracting with the provider. If the person is a self-funder, it will then re-charge the person the full cost of the care.
  6. Councils should provide advice and support to the person after the financial assessment. This should include information about a person’s right to ask the Council to meet their needs, or support to make their own arrangements if they choose to do so.
  7. When a person lacks capacity, they may still be assessed as being able to contribute towards the cost of their care.

Bury Metropolitan Borough Council’s Charging and Financial Assessment Policy

  1. Bury Council’s policy says the Council will financially assess and charge permanent and respite residents for the care and support provided in residential care. It requires residents to complete a financial assessment form to enable the Council to calculate the charges.
  2. It says if there is an Appointee for benefits, Power of Attorney or Court appointed Deputy they must be involved, but support with this process may be provided by a friend or relative.
  3. A resident will be classed as self-funding and responsible for making their own arrangements for the full cost of their care if:
    • the resident chooses not to disclose their personal financial circumstances; or
    • the resident has capital above the upper threshold limit of £23,250.

Ordinary residence and arranging care out of area

  1. Whether a person is ordinarily resident in a council’s area is a key test in determining where responsibilities lie between councils for the funding and provision of care and support. There is no definition of ordinary residence in the Care Act. The Guidance says councils should apply the principle that ordinary residence is the place a person has voluntary adopted to live for settled purposes.
  2. There may be some cases where the council considers a person’s care and support needs are best met by providing accommodation in another council’s area.
  3. In these cases, the principle is the person placed ‘out of area’ is deemed to continue to be ordinarily resident in the first or ‘placing’ authority area and does not get an ordinary residence in the ‘host’ or second authority. The council which arranges the accommodation, therefore, retains responsibility for meeting the person’s needs.
  4. The guidance says the only time this may not apply would be if the person had moved to the different area of their own volition, and without the council making the arrangements. In these cases, they would likely acquire ordinary residence in the area where the new accommodation is situated.
  5. The law sets out the procedures local authorities must follow when disputes arise between them about a person’s ordinary residence. They must first take all reasonable steps to resolve the dispute between themselves. It is critical the person does not go without the care they need, should councils be in dispute.
  6. The local authority meeting the needs of the adult or the carer on the date the dispute arises must continue to do so until the dispute is resolved. If no local authority is meeting the person’s needs, then the local authority where the person is living or is physically present must accept responsibility until the dispute is resolved. Where disputes cannot be resolved through discussion the Secretary of State may be required to determine disputes. Applications must be submitted to the Secretary of State before or by the end of a period of 4 months from when the dispute arose. Following this an authority can recover costs from the authority which should have been providing the relevant care and support.

Deferred payment arrangements

  1. Deferred payment arrangements are designed to prevent people from being forced to sell their home in their lifetime to meet the cost of their care. Councils must offer them to people who meet the criteria.
  2. Bury Metropolitan Borough Council sets out the eligibility criteria in its Deferred Payments policy. It says the Council must offer the Deferred Payment Scheme to people who:
    • Have needs that are being met by the provision of care in a care home;
    • Have less than (or equal to) £23,250 in assets excluding the value of their home;
    • Have a home that is taken into account in the local authority financial assessment and is not disregarded (as set out in the charging regulations).
  3. The policy says a Deferred Payment Agreement can only be arranged with the owner of the property who has mental capacity to make the decision, or somebody legally authorised to deal with financial affairs on their behalf.
  4. When a person lacks capacity and there is no legally appointed person yet in place but someone is applying to the Court of Protection for deputyship, Bury Council will pay the care home provider and invoice the person applying for the deputyship. The person applying for deputyship must sign a letter of undertaking to pay the accrued debt of care home fees once the deputyship is granted. The standard compound interest rate will be applied to these invoices and the accrued debt.

Deprivation of Liberty safeguards authorisation

  1. A care home must apply for and be granted a Deprivation of Liberty Safeguard order (DoLS) if a resident lacks capacity and the care home feels it is in a person’s best interest to detain them in the care home. DoLS requests are assessed and authorised by councils responsible for a person’s care.

The Court of Protection and a Court-appointed Deputy

  1. When a person lacks capacity, a representative can apply to the Court of Protection to be their deputy. One type of deputy is a property and financial affairs deputy. If granted, this allows the representative to make decisions about their property and manage the person’s financial affairs on their behalf.
  2. If the applicant needs urgent access to a person’s funds, they can ask the court to make an interim order. Court of Protection guidance says this should only be applied for in cases of genuine emergency but could be to pay outstanding care home fees.

What happened

  1. Mrs Y has lived in a house in Bury Council’s area for many years. In 2018, she was receiving home care support in her own home, arranged by the Council.
  2. In June 2018, she was admitted to hospital.
  3. The hospital social work team assessed Mrs Y and had concerns about her returning home. The social worker discussed these concerns with her son, Mr X. Mr X agreed with these concerns and said he felt she would not be safe if she returned home. He felt it was time for her to move into residential care. The social worker agreed to carry out a Capacity Assessment to see is Mrs Y could make the decision about discharge destination herself. If the assessment concluded she lacked capacity, this decision would need to be a Best Interest decision made on her behalf.
  4. The social worker completed the assessment and concluded Mrs Y did not have capacity to decide her discharge destination.
  5. They spoke to Mr X to tell him this. They discussed Mrs Y’s discharge from hospital and considered what would be in her best interests. Mr X agreed a period of respite care in a care home would be in her best interests, to allow more time to assess and determine her longer-term care needs.
  6. Mr X told the social worker his mother had expressed dislike of the local faith-based care home (care home A). He told the social worker his preferred choice would be the faith-based care home (care home B) in a neighbouring council area (council B). The social worker agreed with this and concluded a period of respite care in care home B was in Mrs Y’s best interests.
  7. The social worker explained the Council’s charging policy to Mr X. They sent him a financial assessment form and written information on the Council’s policy on charging for care.
  8. The social worker arranged for Mrs Y to be discharged from hospital to care home B. Mrs Y moved to care home B at the end of June 2018.
  9. The social work team told Mr X the community social work team would visit within six weeks to review Mrs Y’s longer-term needs and to plan ahead from there.
  10. Mr X told them he had not yet completed the financial assessment as he did not have Power of Attorney for Mrs Y. Council records say the social worker advised him to seek legal advice and also that he could look up information online.
  11. The Council assessed the contribution Mrs Y should pay for her care. It calculated Mrs Y should pay the full cost of her care home fees.
  12. In July 2018, a community social worker contacted Mr X. They said they were reviewing Mrs Y’s care. Mr X told the social worker he hoped Mrs Y could stay in care home B permanently.
  13. During July and August 2018, the community social worker completed their review and re-assessed Mrs Y’s capacity to make the decision about where she should live. They concluded Mrs Y lacked capacity to make this decision. They consulted with the care home staff, the community mental health team, Mr X and a local religious representative. Mr X told the social worker he would like Mrs Y to reside permanently at care home B. The social worker agreed and concluded it was in Mrs Y’s best interests to remain at care home B, and the placement should be made permanent.
  14. The social worker updated Mrs Y’s care and support plan. It said the placement at care home B would become permanent on 21 August 2018 and Mrs Y’s care and support plan would then be reviewed annually.
  15. The Council re-assessed the cost of Mrs Y’s care as a permanent resident at care home B. It calculated the cost of her care at its standard care home rate. It assessed Mrs Y as responsible for the full cost of her care.
  16. In August 2018, Mr X appointed a solicitor who completed an application to the Court of Protection for a deputyship order.
  17. In September 2018, the Council’s social work team still had not received a completed financial assessment form. The Council rang Mr X to chase it up. He told the Council Mrs Y owned her house and had over £23,250 in savings. He said he was in the process of applying to the Court of Protection for deputyship, but it could be up to six months before this was granted and he would have authority to access her financial affairs.
  18. The Council wrote to Mr X. It said as Mr X had told the Council Mrs Y had more than £23,250 in savings, it would not contribute to the cost of Mrs Y’s care. It said it had told care home B of this, and that care home B would invoice him directly for the cost of her care. It advised him that when Mrs Y’s savings dropped below the £23,250 threshold, he should contact Council B for support, as at that point Mrs Y will be ordinarily resident in Council B’s area.
  19. The Council sent Mr X an invoice for the full cost of the respite care between June and August 2018.
  20. The Council wrote to care home B to tell it Mrs Y was a self-funding resident from 21 August 2018.
  21. Mr X wrote back to the Council. He said he had spoken to Council B who had told him that as Mrs Y still owns a house in Bury Council area, Bury Council was still responsible for her care. He said he felt Bury Council had pressurised him into asking his solicitor to try and speed up the deputyship process, by applying for an interim order. His solicitor has told him there were no grounds to apply for this. He says this poor advice from the Council led to increased solicitor fees.
  22. In October 2018, the Council wrote to Mr X. It said it was usual for the person dealing with a resident’s finances to complete the financial assessment form with as much information as they have at the time. On this basis, the Council paid for Mrs Y’s respite care between June and August. The Council was now re-charging Mrs Y as Mr X had told the Council she had savings in excess of the £23,250 threshold. It said as she was now a self-funding resident in care home B, she would be considered an ordinary resident in Council B’s area. It re-stated its position that once her capital fell below the charging threshold, Council B would be responsible for funding or offering a Deferred Payment Agreement.
  23. Mr X sent the Council details of Mrs Y’s finances including her outgoings. This included the outstanding respite charges Mrs Y owed the Council and invoices from care home B for the cost of her care from 21 August 2018. He told the Council her available funds were likely to soon fall below the threshold.
  24. The Council wrote to Council B. It said it considered Mrs Y to be an ordinary resident of Council B. It said at the time Mrs Y became a permanent resident at care home B, she had over £23,250 in capital. It therefore considered her to be self-funding her care. It said it had also received information that her assets were likely to soon fall below the threshold and at this point Mrs Y’s representative may approach Council B for help.
  25. At the end of October 2018, Mr X made a formal complaint to the Council. He said there was disagreement between the Council and Council B as to who was responsible for Mrs Y’s care. He said he wanted the two councils to resolve the dispute and confirm which council was responsible.
  26. The Council responded to his complaint. It said a person who was self-funding and moves to a different area will become ordinarily resident in the new area. It said once her assets fall below the threshold, he should approach Council B for support with funding. It said it had informed Council B of this.
  27. In November 2018, Council B wrote to Bury Council. It said Bury Council had arranged and contracted the placement of Mrs Y into care home B in June 2018. It said the Guidance says the council which arranges the care remains responsible for meeting the person’s needs. It said prior to Mrs Y’s placement in care home B, she lived in her own property in Bury Council’s area. She was therefore ordinarily resident in Bury.
  28. Bury Council replied to Council B. It said in principle it did not disagree with these comments. It said Mrs Y was currently a self-funder. When Council B asked for clarification as to whether the Council still considered Mrs Y to be an ordinary resident of Council B, the Council replied, “the issue of ordinary residence has not been established.”
  29. In January 2019, the Council authorised a DoLS order for the next 12 months. It named the supervisory council as Bury Council.
  30. Mr X brought his complaint to us in January 2019. He said that neither Bury Council nor Council B would take responsibility for his mother’s care. He was in the process of applying for deputyship so he could access Mrs Y’s financial affairs, but in the meantime as neither Council was accepting responsibility for her care, neither Council would support him to pay the care home fees. The care home was invoicing him directly and charging interest on the outstanding balance. When he is granted the deputyship, he does not know which council to approach to discuss a deferred payment arrangement. He is concerned care home B will evict his mother due to non-payment of fees and he will not know which council to approach for support. He says the situation is causing him a great deal of anxiety and distress.
  31. In its response to our enquiries, the Council says it authorised the DoLS request as Mrs Y was placed by Bury into a care home in Council B’s area. It said it considered Mrs Y to be a self-funder, as she has capital assets above the charging threshold of £23,250 and owned a property. It said its view was that when her total assets drop below the charging threshold, funding should be applied for from the area in which she is living at that time.

Analysis

  1. In June 2018, the Council social worker assessed Mrs Y’s needs and decided it was in Mrs Y’s best interests to have respite care on discharge from hospital. The Council acted appropriately to meet this identified need by arranging Mrs Y’s respite placement into care home B. At this stage, it did not have information about Mrs Y’s financial affairs.
  2. The Guidance says when a council is meeting needs by arranging a care home, it is the council that is responsible for contracting with the provider. The Council did not have information about Mrs Y’s financial circumstances, so it acted appropriately by paying care home B the care fees during this period, until it had more information.
  3. In September 2018, when Mr X provided more information about Mrs Y’s finances, the Council completed a financial assessment. The Council assessed Mrs Y as having assets above the £23,250 threshold and required to pay the full costs of her care. It sent Mr X an invoice for the cost of the respite care between June and August. The Council was entitled to re-charge Mrs Y for these costs in line with the Guidance and its Charging policy.
  4. The Council also wrote to care home B and told it Mrs Y was a self-funder and it should send the care bills directly to Mr X. However, the decision that she needed residential care had already been made, and the Council had already arranged the placement. It firstly arranged the respite placement and then in August 2018, arranged for Mrs Y to remain in care home B as a permanent resident.
  5. The Guidance says a council is not required to meet the needs of people who have capital assets above the threshold and who’s needs are best met in a care home. However, by the time it assessed Mrs Y as a self-funder, the Council had already made the arrangements to meet Mrs Y’s needs. As the Council made the arrangements, in accordance with the Guidance, it should be the Council who is responsible for contracting with the provider. The Council cannot say, retrospectively, that it did not arrange the placement because it had since assessed her as being a self-funder. When it arranged the permanent placement, the Council should have contracted with care home B to provide Mrs Y’s care. It did not do this. This is fault. Mrs Y did not have capacity and so could not make the arrangement herself. Mr X did not have authority to access Mrs Y’s funds and so could not contract directly with the care home on her behalf.
  6. After it assessed Mrs Y as a self-funder, the Council should have provided advice and support and discussed the options with Mr X. As Mrs Y was living in a care home, Mr X would have the option to decline the Council’s input and sign a contract directly with care home B. However, as the Council had already arranged the care, it should have offered Mr X the choice of continuing this arrangement. The Council would then be entitled to re-charge Mrs Y for the costs of her care and also charge an arrangement fee. The Council did not explain this or offer these options to Mr X to enable him to make an informed choice. This is fault.
  7. Where there is a dispute between local authorities about a person’s ordinary residence, councils are required in the first instance to try and resolve it themselves. If they cannot do this the law requires the dispute to be referred to the Secretary of State. The law also requires the Council to fulfil its obligation to meet a person’s needs until the dispute is resolved.
  8. Prior to Mrs Y moving to care home B, Mrs Y was living in the Bury Council area. She was ordinarily resident in Bury. Bury Council placed her in a care home out of area. This position is supported by the DoLS authorisation which names the supervisory council as Bury. The Guidance is clear that when a person is placed in a care home out of area, a person does not become an ordinary resident in the second area. Bury Council is responsible for Mrs Y’s care needs. If the Council disputes Mrs Y’s ordinary residence it is open to the Council to follow the dispute procedure. Bury Council has refused to accept responsibility for Mrs Y’s care and support, and this is fault. This has caused Mr X considerable anxiety and distress as he has not known which council to approach for support since September 2018.
  9. As Bury Council is responsible for Mrs Y’s care, it should have acted in accordance with its policy for when a person lacks capacity and another person is in the process of applying for deputyship. The Council should have offered to pay the care home fees and invoice Mr X, if he agreed to sign a letter of undertaking to pay the fees once the deputyship was agreed. It did not do this and this is fault. The mounting costs have caused Mr X considerable distress and uncertainty, as he currently cannot access Mrs Y’s finances and is concerned the care home may evict Mrs Y for non-payment of fees.
  10. Once appointed as Mrs Y’s deputy, Mr X can approach Bury Council to discuss a deferred payment arrangement, once Mrs Y’s capital assets fall below the threshold of £23,250.
  11. Mr X says the Council provided him with poor advice regarding applying to the Court of Protection for an interim order to speed up access to Mrs Y’s funds. An interim order can be granted for one-off decisions such as paying care home fees. I cannot know whether the Court of Protection would have granted him an interim order, if he had applied for one and nor could the Council. The Council sent him information on its charging policy and advised him to seek independent legal advice. There is no evidence of fault in the advice the Council provided to Mr X.

Agreed action

  1. Within one month of the final decision the Council will:
    • Write to Mr X to apologise and pay Mr X £500 for the distress and uncertainty caused by the faults;
    • Write to Mr X, Council B and care home B to confirm it accepts it is currently responsible for Mrs Y’s care and support;
    • Contact Mr X to discuss the situation. As it arranged the care and if Mr X wishes, it should offer to formally contract with care home B from when she became a permanent resident on 21 August 2018. It is then open to the Council to re-charge Mr X with the costs in line with its charging policy;
    • Follow its policy and offer to pay the outstanding care home costs until Mr X is granted the deputyship and can re-pay the Council from Mrs Y’s assets. If Mr X accepts this offer, it should calculate the costs and any interest charges in line with its policy;
    • If Mr X decides not to accept support from the Council, it should advise Mr X as appropriate about meeting costs and arranging a contract of care directly with care home B.
  2. Within three months of the final decision the Council will:
    • Remind relevant staff of:
        1. The Guidance in relation to ordinary residence and arranging care out of area;
        2. The Council’s responsibility to contract with a care home if it is arranging care to meet an identified need.
    • Review its policies to make it clear that where the Council arranges the care, it is responsible for contracting with the provider, as set out in the Care and Support Statutory Guidance.

Back to top

Final decision

  1. I have completed my investigation. I have found fault causing injustice and the Council has agreed actions to remedy the injustice caused.

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