Staffordshire County Council (19 008 004)

Category : Adult care services > Charging

Decision : Not upheld

Decision date : 02 Jan 2020

The Ombudsman's final decision:

Summary: Mr Y complained for Mrs X about the Council’s refusal to retrospectively reassess the contributions she made to the cost of her care. The Council was not at fault for charging Mrs X the full cost of her care or for refusing to carry out another assessment after Mrs X died.

The complaint

  1. Mr Y, a Solicitor, complained for Mrs X about the Council’s refusal to carry out a re-assessment of Mrs X’s finances after her death.
  2. Mr Y said Mrs X’s mental health and severe mobility issues prevented her from updating the council about her financial position. He said the Council should have done more to help Mrs X because of these problems. If it had, Mrs X would have received benefits she was entitled to and the care costs she was liable to pay would fall.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  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)

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How I considered this complaint

  1. As part of the investigation I have considered the following:
    • The complaint and the documents provided by the complainant’s representative.
    • Documents provided by the Council and its correspondence with the complainant.
    • The Care Act 2014.
    • Care and Support Statutory Guidance 2014.
    • The Care and Support (Charging and Assessment of Resources) Regulations 2014.
  2. I have written to Mr Y and the Council with my draft decision and given them an opportunity to comment.

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What I found

  1. Once the Council decides a person has eligible care and support needs, it must carry out a financial assessment to see what contribution the person may have to pay towards the cost of their care. The amount a person may pay is based on what they can afford and will take account of their income and assets. The Council cannot charge more than the cost it incurs.
  2. The upper capital limit is £23,250. If a person has more capital the Council may ask them to pay full care costs.
  3. The lower capital limit is £14,250. If a person has less capital they will not have to pay towards the cost of care.
  4. A person with capital between £14,250 and £23,250 will pay an amount towards the cost of their care determined by a financial assessment.
  5. The Council must regularly reassess a person’s ability to meet the cost of their care, considering any changes in their circumstances.
  6. The Council must ensure information and advice is available in a format easy to understand, making clear what contributions people must make. This is part of its duty under the Equality Act 2010.
  7. Under the Care and Support (Charging and Assessment of Resources) Regulations 2014, the Council is treated as having carried out a financial assessment and being satisfied a person’s finances exceed the financial limit in circumstances where:
    • A person has refused a financial assessment; or
    • Refuses to cooperate with the assessment and the Council still decides to meet their care needs.

What happened

  1. Mrs X received care and support in her home, provided by the Council. Before 2016 Mrs X contributed towards the cost of her care.
  2. In January 2016 the Council carried out a light touch financial assessment based on information Mrs X provided by telephone. The Council then wrote to Mrs X to tell her she did not have to pay care charges, based on the information she gave. However, the Council still needed to verify Mrs X’s bank accounts and told Mrs X any amount above the threshold could affect her contributions. The Council also provided a factsheet about care charges.
  3. In May 2016 the Council assessed Mrs X’s capital to be £24,958.17, based on the information she provided. The Council wrote to Mrs X asking her to provide bank statements to complete her pension credits claim. The Council told Mrs X if her capital goes above £25,000 she will have to pay the full costs of her care.
  4. Mrs X’s social worker carried out a review in June 2016. Mrs X told her social worker she could not afford care fees and had received an invoice from the Council. Mrs X’s social worker telephoned the Council. The Council said the charges were for Mrs X’s care before her recent assessment and that she had savings.
  5. The Council wrote to Mrs X chasing payment of outstanding invoices in September and October 2018. The charges related to care dating back to 2016.
  6. Mrs X passed away in December 2018. The Council sent a final invoice, for care charges from 2016 to 2018, totalling £43,541.06, to Mrs X’s estate on 29 January 2019.
  7. Mr Y asked the Council to carry out a re-assessment of her capital considering she only had £26,500 of cash assets when she died. The Council refused. Mrs X’s representative complained to the Council.
  8. The Council sent its complaint response on 15 July 2019. It said when it carries out financial assessments the person must provide their financial information, but Mrs X refused. In such cases the Council can treat the person as a self-funder.
  9. The Council contacted Mrs X on many occasions about a financial assessment, including home visits, but she was not forthcoming. The Council asked a social worker to carry out a capacity assessment which confirmed Mrs X had capacity to decide, including about paying invoices. The Council said it appreciates Mrs X suffered from depression, but her medical records confirm she had a good insight into her illness and did not have memory problems.
  10. The Council would not carry out a re-assessment because it had no duty to Mrs X after her death and it owed no duty to the beneficiaries of her estate.
  11. Mr Y complained to the Ombudsman on 13 August 2019. He said Mrs X’s mental health issues and severe mobility issues prevented her from being able to update the council about her financial position. He said if the Council did more to help Mrs X she would have received benefits she was entitled to.

Analysis

  1. When Mrs X refused to cooperate with a financial re-assessment, or pay invoices for the cost of her care, the Council made efforts to engage with Mrs X. This included carrying out a capacity assessment. The assessment concluded Mrs X had capacity to refuse to cooperate. In those circumstances the Council has the right to treat Mrs X as though she was above the capital limit and was responsible for the full cost of her care. That was not fault.
  2. Mr Y believes the Council should have taken greater account of Mrs X’s mental health. The Council took what action it could by asking a suitably qualified social worker to assess Mrs X’s capacity to decide. The Council provided Mrs X with information about care charges and officers visited Mrs X to discuss this with her. Mrs X chose not to cooperate. When a person is assessed as having capacity, the Council does not have the right to interfere with their decisions. The Council was not at fault.
  3. Mr Y asked the Council to carry out a retrospective assessment after Mrs X’s death. The Council said it no longer owed a duty to Mrs X when she passed away and would not carry out a re-assessment. Given Mrs X did not want to engage in a financial re-assessment, or pay care fees, when she was alive, I do not find the Council at fault for refusing to carry out a re-assessment after Mrs X’s death.
  4. Mrs X’s estate want a re-assessment. The Council does not owe a duty to Mrs X’s estate. It is for the Council to now decide whether it wishes to pursue Mrs X estate for the unpaid care costs.

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Final decision

  1. I have completed my investigation. The Council was not at fault for charging Mrs X the full cost of her care or for refusing to carry out another assessment after Mrs X died.

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Investigator's decision on behalf of the Ombudsman

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