Summary: The Council was at fault for failing to properly notify Ms B about her father’s potential care charges, for providing inconsistent information about the charges, and for the delay in responding to her complaint. The Council’s failures did not cause Ms B’s father an injustice, because it is unlikely he would have received cheaper residential care if Ms B had refused to pay the Council and had arranged his care privately. However, the Council has agreed to apologise to Ms B and make a payment of £150 to remedy her injustice.

The complaint

1. The complainant, whom I refer to as Ms B, complains on behalf of her father, whom I refer to as Mr C.
2. Ms B complains that – when arranging residential care for Mr C – the Council failed to properly advise her about potential care charges. She says it only told her about her third-party top-up, and did not tell her about Mr C’s assessed contribution.
3. Ms B says the Council has invoiced Mr C for £7,203. She says that, if it had given her the correct information beforehand, she would have made a different decision about his care.
4. Ms B says the Council was slow to respond to her and her solicitors about the matter. She says she could no longer afford solicitors’ fees, so was pursuing the complaint herself..

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The Ombudsman’s role and powers

5. 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)
6. 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

7. I considered information from Ms B and the Council. I wrote to Ms B and the Council with my draft decision and considered their comments.

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What I found

8. Section 14 of the Act gives councils the power to charge people when it arranges their care and support (unless it is required to provide this free of charge).

The Care and Support (Charging and Assessment of Resources) Regulations 2014

9. Regulation 9 says that, when a council has decided to charge someone for their care and support, it must carry out a financial assessment.

The Council’s deferred payment agreement leaflet

10. This leaflet sets out how the Council will meet its property disregard and deferred payment duties, under the Care Act 2014 and the Care and Support (Deferred Payment) Regulations 2014 respectively.
11. The leaflet says that, if someone needs to move into a care home, the Council will look at their finances to see what they can contribute towards the cost of their care.
12. It says people with more than £23,250 in savings (excluding equity in their home) will have to pay for their own care. When people own their own home but have less than £23,250 in other savings – and need residential care – the Council will disregard the equity in their home for the first 12 weeks that they are in permanent residential care. However, these people will still need to pay what they can afford towards their care.
13. It says people who qualify for the 12-week disregard period can – after the period is over – either pay the care provider directly, or can enter a deferred payment agreement with the Council.
14. It says a deferred payment agreement means the Council will pay someone’s residential care fees until the equity in their home is released (this can be after their death).
15. It says that – even with a deferred payment agreement – the person will need to contribute what they can afford (from their income) towards their care. The Council will do a financial assessment to work out what this contribution will be.

The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009

16. Regulation 14 says councils must respond to social care complaints within six months of receiving them. It also says that, if a council fails to do this, it must explain why and issue the response as soon as possible.

What happened?

17. In October 2017 Mr C was in hospital awaiting discharge, and needed care when he left. The Council decided he needed support at night and with eating. Ms B said she could not support him at home, and could not afford care home fees until his home was sold. She asked the Council to pay his fees until she could sell his house and pay the Council back.
18. Ms B also said Mr C had around £22,000 in savings (excluding the equity in his home). The Council told her it would conduct a financial assessment, and said she would have to sign an agreement saying she would pay back Mr C’s care fees once his home was sold.
19. Ms B identified a care home for Mr C which was more expensive than the homes the Council identified. She agreed to pay a third-party top-up so he could move into her preferred home (although the top-up amount was not decided at that point). The Council agreed to part-fund Mr C’s care for the first 12 weeks.
20. Mr C moved into the care home on 12 October 2017.
21. The Council sent Ms B a financial assessment form for completion. There are no records to show that it also provided information about charging (including that it will charge people what they can afford out of their income, pending the financial assessment).
22. Ms B appears to have provided the necessary information for the financial assessment by the end of October.
23. The Council stopped part-funding Mr C’s care on 3 January 2018. It wrote to Ms B the day after and said she should pay £190 per week towards the cost of Mr C’s care, as a third-party top-up. The day after that it wrote to Mr C and said – following the financial assessment – he should contribute £600.25 per week towards the cost of his care. Both those figures applied during the first 12 weeks, while the Council was part-funding the care.
24. From 3 January onwards Mr C was responsible for funding his own care in full. However, his assets were still tied up in his home. Ms B asked the Council for a deferred payment agreement, but it told her she could not do this until she had power of attorney (PoA) for Mr C.
25. The Council did, however, agree that Ms B could sign a legal document agreeing to repay Mr C’s care costs when his equity was released from his home. This interim agreement was to be in place until Ms B could gain PoA and enter a proper deferred payment agreement.
26. On 2 February the Council told Ms B that only the third-party top-up would be charged for during the 12-week property disregard period (with the Council paying the rest).
27. In March Ms B told the Council that she now had PoA and could enter a deferred payment agreement.
28. The Council then sent Mr C an invoice for £7,203 – his assessed contribution for the first 12 weeks of his residential care (at £600.25 per week). Ms B challenged the invoice, and said she had not been told what Mr C’s financial responsibilities would be during the property disregard period.
29. After this, Ms B changed her mind about the deferred payment agreement. She said she would arrange Mr C’s care privately. She agreed to pay the outstanding debts, except for the March invoice of £7,203, saying the Council did not make her aware that Mr C would be due to pay this beforehand.
30. The Council refused to waive the invoice, and said there was no evidence it failed to make her aware of charges. However, it acknowledged that it could have done more to explain the charges once it became clear that there had been a misunderstanding. It apologised for this.
31. Ms B then asked her solicitors to pursue a complaint against the Council. They wrote to the Council on 20 August and repeated Ms B’s position. They said that, although there was no evidence the Council had failed to notify her of charges, there was also no evidence it had notified her.
32. The Council responded on 3 September, but did not change its position. It explained why it had charged Mr C for the assessed contribution.
33. After more correspondence between the Council and Ms B’s solicitors, they emailed the Council on 8 October and explained why Ms B was dissatisfied with the Council’s response. The Council said it would aim to respond to this stage 2 complaint within 20 working days.
34. The Council responded to the stage 2 complaint on 21 December. It said its records show that leaflets explaining charging were provided to Ms B, and there was no evidence she was given the wrong information.
35. Ms B was dissatisfied with the Council’s responses, and approached the Ombudsman about her complaint.

My findings

36. Given that – when Mr C went into permanent residential care – he had less than £23,250 in savings, the Council was under the duty to disregard the value of his home. It did so, and agreed to part-fund the care.
37. However, even though it agreed funding for 12 weeks, the Council was entitled to ask Mr C to pay a contribution towards the cost of this care. It (belatedly) decided he should pay £600.25 per week, which he could fund from his income.
38. Ms B is not claiming that the Council was not entitled to charge Mr C, though. She is saying she was not told about this beforehand, so could not make an informed decision about his care.
39. The first evidence I have seen of the Council telling Mr C (or Ms B) that he would have to pay an assessed contribution was in January 2018. This was after the 12-week property disregard period was over. Although the Council told Ms B that its records showed it told her about these charges beforehand, these records do not exist. Although the Council clearly told Ms B that it would conduct a financial assessment, there is no evidence she was properly informed about what potential charges could arise from that assessment.
40. The evidence does, in fact, show that the Council gave conflicting information about what was due (albeit all after the 12-week period was over). Mr C was told about the assessed contribution in January 2018; Ms B was then told the Council would fund all of the care – except for her third-party top-up – in February; and then the Council sent the invoice for the full 12 weeks of assessed contributions in March.
41. Having considered the documents available, I am satisfied – on the balance of probabilities – that the Council failed to properly inform Ms B about potential charges for Mr C’s care until after the charging period was over. It then gave her conflicting advice about what would be charged for.
42. This meant Ms B suffered uncertainty about what she would have to arrange for Mr C to pay. The receipt of the invoice for his assessed contributions – after being told that only her third-party top-up would be payable – also likely caused her distress.
43. However, in my view, there was no financial injustice to Mr C.
44. Ms B says that, if she had known about the potential charges, she would have made a different decision about Mr C’s care. However, Mr C needed residential care. It appears that the only alternative – other than involving the Council, as she did – would have been to arrange it privately.
45. Not only would privately-arranged residential care have likely been more expensive than care arranged by the Council, but – had Ms B not approached the Council – it would not have part-funded Mr C’s care for the first 12 weeks. This means he would not have received around £2,500 of funding from the Council (which is what it contributed during the property disregard period).
46. As a result, it is difficult to see how Ms B would have saved Mr C a significant amount of money had she known about the assessed contribution earlier and refused to pay it. Given that the Council was entitled to charge Mr C, I do not consider that he suffered a financial injustice because of the Council’s failure to properly advise Ms B of the potential charges.
47. Councils have to resolve complaints about adult social care within six months. However, this does not mean they should take six months to respond to each complaint. They should still respond without delay.
48. The Council told Ms B’s solicitors that it would aim to respond to the stage 2 complaint within 20 working days, and would let them know if this response was going to take longer.
49. This deadline was 5 November. However, the Council did not respond until 21 December – almost seven weeks after the deadline. I have not seen evidence that it contacted Ms B or her solicitors to tell them the response would take longer than 20 working days (as it said it would).
50. This was fault by the Council, and Ms B suffered injustice in the form of uncertainty.
51. I have considered whether it would be appropriate to recommend that the Council reimburse any solicitors’ fees accrued because of the delay. However, in my view, it was not necessary to instruct solicitors to deal with this matter. Council complaints procedures do not require legal representation, and Ms B’s complaint to the Ombudsman (which she made without the help of a solicitor) suggests she was fully able to understand the issues at hand.
52. As a result, although the Council was at fault, I do not consider it necessary to recommend that it reimburse Ms B’s solicitors’ fees.

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Agreed actions

53. The Council has agreed to apologise to Ms B for its failure to properly notify her about Mr C’s potential care charges, for providing inconsistent information about the charges, and for the delay in responding to her complaint.
54. The Council has agreed to make a payment of £150 to Ms B to recognise the uncertainty and distress caused by the Council’s failures, and the time and trouble she took to pursue the complaint.
55. The Council has agreed to remind staff who conduct financial assessments to ensure they share information about charging to people before conducting the assessments, and to record that they have shared this information.
56. These actions should be completed within six weeks of the date of this decision statement.

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Final decision

57. The Council was at fault for failing to properly notify Ms B about Mr C’s potential care charges, for providing inconsistent information about the charges, and for the delay in responding to her complaint. The agreed actions remedy her injustice.

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Investigator's decision on behalf of the Ombudsman