Summary: Mrs Y complained on behalf of her mother, Mrs X that the Council gave incorrect and misleading advice about charging for Mrs X’s care after she left hospital to go into interim care. The Council did not adequately explain the charging basis. It has agreed to cancel charges up to when it was decided Mrs X would live permanently at the care home. This is an appropriate remedy.

The complaint

1. Mrs Y complains the Council gave incorrect and misleading advice about charging for her mother, Mrs X’s care after her discharge from hospital. It demanded payment for care charges covering the whole stay. She wants the Council to cancel the charges and make sure social workers give correct, clear and accurate advice in future.

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The Ombudsman’s role and powers

2. 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)
3. 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.
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 discussed the complaint with Mrs Y. I considered evidence provided by the Council including its advice leaflet on charging and care records for its contact with Mrs X and Mrs Y.
6. I gave the Council and Mrs Y the opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Charging for residential care

7. Where a council arranges care and support to meet a person’s needs it may charge the adult for that care and support, except in specific circumstances where it must arrange it free of charge.
8. Where councils provide intermediate care and reablement support to those who need it, for example when the leave hospital, they must provide this free of charge for the first six weeks. This is to enable to person to recover so they can live independently in their own home.
9. Where a council arranges a care home placement it has to carry out a financial assessment to decide how much the person has to pay towards the cost of their residential care.
10. People who have savings over the upper capital limit of £23,250 have to pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. The council will carry out a financial assessment to decide how much they can afford to pay towards this.
11. Councils must then clearly set out and explain the person’s personal budget including:
• The cost to the council of meeting the person’s needs.
• The amount the person must pay towards that cost, based on the financial assessment.
• Any amount the council must pay towards the cost.
12. A temporary resident is someone admitted to a care home where the agreed plan is for them to only stay there for a limited period, usually less than one year. It can cover situations where there is doubt that permanent admission is needed. Councils should normally disregard the value of the person’s home in its assessment of what they can afford to pay towards a temporary stay. It can charge a contribution towards care costs based on its assessment.

Capital from a property owned by the person

13. Often someone needing permanent residential care will have savings below £23,250 (called the capital threshold) but own a property that, if sold, would mean they would have to pay the full cost of care.
14. The council can then disregard the value of their property for the first twelve weeks of the person’s care. After the end of this period the council can make a deferred payment agreement to pay the difference between the person’s assessed contribution and the full cost of care, recovering its costs later when the person’s property is sold.

What happened

15. Mrs X was discharged from hospital in mid-February 2019 to live in a care home whilst she recovered. This was an assessment bed, free for two weeks to allow further assessment. She, her daughter Mrs Y, and the Council agreed she was not yet well enough to return to live at home although Mrs X intended to do so when she was well enough. After assessment she moved to a second care home (B) as an interim care placement. Mrs Y says the Council did not make clear the arrangements and implications.
16. Mrs Y had already completed a financial assessment of Mrs X in January 2019. The Council decided the financial assessment showed Mrs X had savings below £23,250 but also owned the house she had lived in.
17. The financial assessment form says people should read the Council’s care charges leaflet, explaining charging for adult social care services before completing the form. The Council’s leaflet explains that when someone moves into a care home on a permanent basis, it can disregard the value of the home for the first twelve weeks of their stay. It explains that depending on the financial assessment, the person may still have to pay an assessed contribution towards care costs during this first twelve weeks. It states that for up to six weeks the Council will not charge people for the care costs associated with a reablement service to help them regain independence.
18. The Council says it sent Mrs Y this leaflet in January though there is no reference to this in contemporary case notes. Mrs Y was, at that time, corresponding with the Council about charges for a previous stay. She was confused about the basis for charging and asked for a full explanation.
19. Mrs Y says that the Council told her there would be no charge for Mrs X’s interim stay at care home B. The Council says it verbally explained to Mrs X that there would be charges. Mrs Y says the Council did not meet Mrs X on her own. Case notes from February state the social worker told Mrs Y there would be a charge because Mrs X had moved from assessment to interim placement but how much this charge would be would depend on the outcome of the financial assessment. Case notes from a Council panel meeting in February state Mrs Y had said Mrs X had some savings below the threshold and owned her property outright. Mrs Y had completed the financial assessment form and was waiting for the outcome. The panel’s recommendation was for Mrs Y to stay for 4 weeks interim placement at Care Home B.
20. In March 2019 Mrs Y and Mrs X met with a social worker. They discussed the importance of Mrs X staying at the care home as she was not ready to return to live at home. The Council agreed to extend the interim placement to allow further recuperation. Mrs Y’s recollection is that she again asked if Mrs X would need to pay towards her care. Again she says she was told there would be no charge as her savings were below the threshold. The Council’s case notes do not refer to discussion about finances at this time.
21. In May 2019 Mrs Y and Mrs X met with a social worker to discuss the need for Mrs X to extend her stay. Mrs Y recalls the social worker explaining that the Council would continue to disregard Mrs X’s house for twelve weeks, but she would then need to pay towards her care. Case notes record Mrs Y knew about the deferred payment agreement. A later case note refers to the potential for Mrs X to stay permanently in Care Home B and, if so, that further discussion was needed about deferred payments.
22. Mrs X’s stay at care home B was made permanent in early May 2019. The Council’s case note records Mrs Y agreed to the deferred payment arrangement to fund her care. After a request from her it sent her the charges leaflet that explained charges, deferred payments and the twelve week disregard. It later confirmed Mrs Y could ask for a reassessment if Mrs X’s needs changed in future.
23. In late June Mrs Y asked for a reassessment as Mrs X’s health had improved and she felt she was now ready to go home. After assessment, Mrs X returned home at the end of July 2019, twelve weeks after agreeing to the permanent placement. Case notes from June indicate the Council explained charges for this period of care to Mrs Y, including providing her with a booklet containing information about this. Mrs Y says this was the first time she had seen the leaflet. Mrs Y moved to live back home at the end of July.
24. In June 2019 the Council issued Mrs X with a bill for care costs dating back to when she first moved into care home B in February 2019. This was for £6,330.14. Mrs Y complained to the Council on Mrs X’s behalf. She said the Council had told her it would not charge for Mrs X’s care until she moved into the care home permanently and her savings were below the threshold.
25. The Council replied in June explaining the basis for charging. It referred to the twelve-week disregard of property and explained how to request deferment. Mrs Y continued to correspond, asking for clarification about what was owed. She said the Council had never told her she would be charged from the start of her stay in February and up to the twelve-week point.
26. The Council replied in July. It said social workers recalled explaining the difference between “an assessment bed and interim placement and that the charges were clearly explained to you for Mrs X’s interim placement”. It referred to an email it had sent in January 2019 that referred to the possibility of charging for care. It said it had explained, at the review meetings in March and May that the care was chargeable. It said it had explained that Mrs X’s property would be taken into consideration if she moved into a care home permanently but would be “disregarded for the first twelve weeks of being permanent”.
27. Mrs Y replied to say the social workers had never explained this. They had said that because Mrs X had savings below the capital threshold she would not be charged.
28. Responding to my investigation the Council said its records did not clearly show what social workers had explained about charging for Mrs Y’s care. They indicated it had only given verbal advice without backing this up in writing. It offered to cancel fees up to the point when Mrs X became a permanent resident at the care home in early May 2019. This meant she would now owe £3,703.56.
29. Mrs Y told me she was sure she had been told she would not be charged for care until the twelve weeks property disregard ended. The Council had failed to reply to her questions about what the cost would then be until it billed her. It had not given her information about charging until mid-June, when Mrs X was ready to come home.

My findings

30. As Mrs X had moved into assessment, then interim care placements, after coming out of hospital, the Council could not have charged her for the first six weeks of that care (until mid-March 2019). After then the Council was entitled to charge for Mrs X’s care based on the outcome of its financial assessment, taking into account her savings below the threshold. Once Mrs X’s stay at the care home was on a permanent basis, the twelve week property disregard applied, and, after then the deferred payment arrangement.
31. Councils should clearly explain the nature and basis for decisions about charging for care. Whilst verbal explanations are helpful, they should normally be backed up in writing, particularly where important financial matters are concerned, so the person can make an informed decision about care.
32. The Council’s correspondence with Mrs Y referred her to general written advice about care charges. This was not specific to Mrs X. Case notes indicate some conversations took place between Mrs Y and social workers about charging. The records are unclear about what was said and they are not backed up by written correspondence setting out the charges that would be applied to Mrs X. There is a difference of views about what was said. On the balance of probability, this lack of clarity and, in particular lack of clear, specific correspondence setting out charges is fault causing avoidable uncertainty for Mrs Y. However there is no evidence of concern about the need for Mrs X’s stay or that her care would have been provided differently, had the Council acted without fault.
33. The Council’s offer to cancel charges up to the point Mrs X’s stay at care home B became permanent in early May 2019 is an appropriate remedy for this injustice.

Agreed action

34. The Council will, within one month of my final decision, write to Mrs Y to apologise for uncertainty caused by the lack of clear, written correspondence and confirm it has cancelled care fees for Mrs X’s stay at care home B up to 7 May 2019.
35. The Council will, within two months of my final decision, ensure social workers involved in advising about care charges are reminded about the importance of providing clear, written information about charging, to enable properly informed decision making.

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Final decision

36. I have completed my investigation finding fault causing injustice. The actions the Council has agreed to carry out remedy that injustice.

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Investigator's decision on behalf of the Ombudsman