Summary: Mrs R complained about the way the Council calculated her father’s contribution to his care home costs. There was fault in the way the Council reviewed its decision and a delay in carrying out the review. The Council should pay the family £700 to remedy the injustice caused and review its process.

The complaint

1. Mrs R complained, on behalf of her father, Mr X, about the way the Council calculated his contribution to his care home costs and, in particular, the way it considered his capital. Mrs R said this left Mrs X without savings and with insufficient means of support.
2. Mrs R and her brother say they were put to the time and trouble pursuing the matter. They also say Mrs X suffered uncertainty about her financial position for a prolonged period of time.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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 spoke to Mrs R and considered the information she provided.
8. I considered the Council’s replies to my enquiries and relevant law and guidance, as set out below.
9. Mrs R and the Council had an opportunity to comment on two draft decisions. I considered their comments and the additional evidence provided.

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What I found

Relevant law and guidance

Financial assessment

10. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
11. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
12. The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.
13. The guidance says a capital asset is usually defined as belonging to the person in whose name it is held. This may be disputed, for example, where the person argues the capital is held for the benefit of someone else. In such cases, councils should seek written evidence to prove who owns the capital. (Annex B, paragraphs 10 and 11, Care and Support Statutory Guidance 2014).
14. The guidance also says where a person receives income as one of a couple, the starting assumption is that the cared-for person has an equal share of the income. The council should also consider the implications for the cared-for person’s partner. (Annex C, paragraph 5, Care and Support Statutory Guidance 2014).
15. The guidance says councils must make clear what the process is if a person wants to complain about any aspect of the financial assessment or the amount the council decided to charge. This council’s approach when a family challenges the Council’s calculation of the person’s assessed contribution is deal with this using its corporate complaints process.

Mental capacity assessment

16. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. A person must be deemed to have capacity unless it is established that he lacks capacity.
17. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. An assessment of someone’s capacity is specific to the decision to be made at a particular time.
18. Where the person does not have capacity to make a particular decision any decision made on their behalf must be in their “best interests”.

What happened

19. In June 2017 an investment in Mr and Mrs X’s joint names matured. Mr X reinvested the proceeds in his sole name. It is not clear why Mr X invested the proceeds of a joint investment in his sole name as all other property was held jointly by the couple. The family argue he made a mistake and he was in the early stages of dementia. They do not believe he had any intention of depriving his wife of her share of their life savings.
20. In September 2018 Mr X went to live in a care home on a temporary basis to give Mrs X a break. The family contacted the Council as they were worried Mrs X would not manage to care for Mr X if he returned home. In October 2018, the Council carried out a mental capacity assessment. It decided he did not have capacity to make decisions about his care. After consulting the family, it made a “best interests” decision that Mr X should remain in a care home.

Treatment of capital

21. Also in October 2018 the Council carried out a financial assessment. It noted Mr X had some capital in a joint account with Mrs X, and some capital in his sole name. The Council said the capital in Mr X’s sole name meant he was above the capital limit and would have to fully fund his care costs until his capital fell below £23,250.
22. Until the Council pointed this out the family were not aware Mr X had reinvested the proceeds of the joint investment in his sole name. They immediately said Mr X must have made a mistake and the capital should be treated as jointly owned by Mr and Mrs X. Although a family member was looking after the finances for Mr and Mrs X by then the relevant account was not in regular use so there was no reason to have noted this sooner.
23. The Council officer dealing with the financial assessment, officer 1, sought advice from the Council’s legal team. The legal adviser said that unless there was evidence to the contrary the Council could assume Mr X intended to reinvest in his sole name and the capital belonged to him alone. The legal adviser also queried why the family had not challenged this before if this was a mistake. The legal adviser suggested officer 1 ask the family for documents relating to the reinvestment.
24. In late October 2018 the family sent the Council a letter explaining the history of the investment and statements to show the money was invested in joint names until June 2017. They asked the Council to review its decision.
25. Officer 1 says she sent the documents to the legal adviser. She was later told to treat it as a complaint.
26. The review request was passed to the complaints team in mid December 2018 and it replied to the family in May 2019. The response said officer 1 sought legal advice and complied with the legal requirements so the complaint was not upheld.
27. The Council has provided a hand written record of a conversation between a reviewing officer and the legal adviser in early April 2019. The reviewing officer says the legal adviser had not changed her view although this is not entirely clear from the note. The note says there was no evidence that Mr X did not have capacity to decide to invest the money in his sole name and he would have had time to correct this mistake himself. However, the legal adviser questioned why he would invest in his sole name after 66 years of investing in joint names. This conversation was not recorded on the case record.
28. An internal email concerning the review states another officer’s view that because the legal adviser had said the capital should be treated as solely owned by Mr X it could not now be treated as jointly owned, even though this “may appear harsh”. It is not clear whether this was a reference to the original legal view, which was on the official record, or the conversation in April 2019, which was not.

Treatment of income

29. Mrs R also complained to us about the way the Council considered Mr X’s income. She said Mrs X was left with insufficient income to live on.
30. The financial assessment shows the Council took into account half of Mr X’s private pension. Its records show officer 1 advised the family to apply for pension credit, attendance allowance and housing benefit, and to tell the council tax team Mr X was now living in a care home.

My findings

Treatment of capital

31. Officer 1 sought legal advice about how to treat the capital in October 2018 as part of the financial assessment. The legal adviser’s initial view was that the capital should be treated as solely owned by Mr X. I have seen the record of the advice, which shows the legal adviser considered the family were trying to avoid care fees because they had not challenged the mistake.
32. The legal adviser suggested Officer 1 request further documents about the investment. The family sent a letter explaining the circumstances and financial documents relating to the investment. In response to my first draft decision the Council provided a hand written note to show there was a further discussion between a reviewing officer and the legal adviser in early April 2019.
33. Council records show officers reviewing the decision considered they were bound by the legal adviser’s view and could not depart from this. It is not clear whether the legal view referred to was before or after the family provided further information in 2018.
34. In response to the second draft decision the Council said it understood there was discretion to depart from legal advice where there was good reason but considered it was not appropriate to do so in this case. It acknowledged its internal records may not have represented the position accurately.
35. The family explained why they had not challenged the mistake before and why there was no intention of avoiding care costs. The family also provided detailed information about the history of the money invested as well as financial documents. There is no record of how the Council considered this information and the complaint response does not explain how it considered it.
36. The Council says it took the view that it must treat the capital as being solely owned by Mr X unless the family provided evidence that it was jointly owned or evidence that Mr X lacked capacity when he made the investment.
37. The family provided information to show the investment was made from the proceeds of a joint investment that had matured. They explained Mr X had been getting confused around the time the investment was made and some time later a family member took over the finances. It is not clear what further evidence the family could have provided other than their account of what happened.
38. By the time the mistake was discovered Mr X did not have capacity so could not be asked about his intentions when making the investment. It is not clear whether he was aware the investment was in his sole name and therefore whether he could have corrected this if it was a mistake.
39. The law says a person should be presumed to have capacity unless there is evidence they do not have capacity. In the early stages of dementia, a person may not consistently present as lacking capacity. This may be why the bank appears not to have had concerns about capacity.
40. It is not our role to say what decision the Council should have made. It was open to the Council to conclude either that Mrs X was a joint beneficial owner of the investment or that Mr X was the only owner, after taking into account all relevant information.
41. I consider the Council should have viewed the family’s account as “evidence” and should not have relied solely on documents, particularly in circumstances such as this where it may not be possible to provide documentary evidence in relation to all relevant aspects. However, I accept it would be for the Council to decide what weight to attach to the family’s account and indeed any other evidence provided.
42. On balance, I am not satisfied the Council considered all the circumstances and information the family provided when reviewing its decision. This was fault. The Council acknowledged its “internal records may not have represented the position accurately”.
43. I am also not satisfied the Council properly explained its reasons for not changing its view after the family provided the further information the Council had requested. This was further fault.
44. I note the Council only produced the hand written record after I issued my first draft decision and it was not recorded in the case record. I consider important information, such as a legal adviser’s view, should be properly recorded on the case file and available to anyone making decisions about the case. The failure to properly record this was fault.
45. There was also a long delay between the family asking for a review in late October 2018 and the Council’s formal response in May 2019. The delay in responding to the review request was fault.
46. The Council accepted there was some delay at the start of the process. This appears to be because the Council did not have a clear process for dealing with challenges to financial assessment decisions. The failure to have a clear process and provide clear information to the family was fault. The Council said it would review its process “to ensure it is clear and understandable to all”.
47. The faults identified meant Mrs R and her brother were put to time and trouble pursuing the Council as well as uncertainty over the outcome for many months. Mrs X suffered uncertainty about her financial position for a prolonged period of time. However, I cannot know if her financial position would have been different had the Council’s faults had not occurred. The Council is satisfied it would have made the same decision even if it had recorded its decision and reasons more clearly. But there were still delays in the review process that caused delay for the family and uncertainty about the outcome.

Treatment of income

48. There is no evidence of fault in the way the Council considered Mr X’s income when it carried out the financial assessment. It only included half of the occupational pension, which follows the statutory guidance that says joint income should usually be treated as being in equal shares. It advised the family on what benefits Mrs X could claim. There was no fault.

Agreed action

49. The Council will, within one month of the date of the final decision:
• apologise to Mrs R for the delay in carrying out a review of the financial assessment decision and the failings identified in that process; and
• pay Mrs R £150 and her brother £250 for the delay and their time and trouble in pursuing the matter over a prolonged period, and Mrs X £300 for the uncertainty caused as a result of failings and delay in the review process (a total payment of £700).
50. The Council will, within three months of the date of the final decision:
• review its process for dealing with challenges to Adult Social Care financial assessments to ensure the process is clear for all, and ensure that all relevant staff are informed about the correct process to follow; and
• review its process for reviewing Adults Social Care financial assessment decisions to ensure that it properly considers all relevant evidence and records how it has considered this, changes its view where appropriate and communicates its reasons for its decisions.

The Council should report to us on the reviews undertaken and the changes made as a result.

51. I had previously recommended the Council reconsiders its decision. However, it has explained it will not change its position unless the family can provide further evidence about Mr X’s capacity at the time of the investment. As the family says there is no further evidence it could provide, there is, therefore, no merit in asking it to carry out the review. The Council is satisfied it made the correct decision.

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Final decision

52. I have completed my investigation. I found fault leading to personal injustice. I recommended action to remedy that injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman