Summary: Mrs C complains that the Council did not provide proper advice about the 12-week property disregard in relation to charging for residential care. As a result, her mother was unnecessarily charged for the first six weeks’ stay in her care home. The Ombudsman considers that the Council did not give appropriate advice. The Council has agreed to backdate the 12-week disregard to the date of Mrs C’s first call. It has also agreed to review its procedures to ensure that it complies with its duty to provide appropriate and timely information and ensure that officers are aware of that duty.

The complaint

1. Mrs C complains that the Council:
• has wrongly applied the disregard so that her mother, Mrs D, has only been allowed six weeks of the 12-week disregard in relation to her care home fees;
• failed to provide adequate advice about the 12-week property disregard in relation to a financial assessment of Mrs D’s resources.

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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. 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

4. I have considered Mrs C’s written complaint and supporting correspondence and discussed her complaint with her. I have made enquiries of the Council and considered its response and supporting papers. I have had regard to relevant legislation and guidance as set out below. I have also sent Mrs C and the Council a draft decision and considered their comments.

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What I found

Legal and administrative background

5. Local authorities have statutory duties and powers for providing support to people who meet local eligibility criteria, and for charging the person for services.

The Care Act 2014

6. The Care Act came into force in April 2015. Section 14 of the Act explains the power of the local authority to charge for the cost of care. Section 17 says a local authority must assess the person’s financial resources and any amount the person would be likely to pay towards the cost of meeting the needs for care and support once it has decided on eligibility.

Care and Support (Charging and Assessment of Resources) Regs. 2014

7. The regulations set out a local authority’s powers to charge, how financial assessments are to be carried out, the treatment of income and capital, and income and capital to be disregarded.

The Care and Support Statutory Guidance 2014 (Care Act 2014)

8. Chapter 8 of the Care Act Statutory Guidance provides guidance on Charging and Financial Assessment and covers common issues for charging.

Treatment of capital

9. Annex B of the Statutory Guidance covers the treatment of capital. The financial assessment looks at all of a person’s assets, decides which is capital and which is income, and assesses those assets according to the regulations and guidance. A local authority must therefore also refer to Annex C on the treatment of income and Annex E on deprivation of assets.
10. In assessing what a person can afford to contribute, a local authority must apply the upper and lower capital limits. The upper capital limit is currently £23,250 and the lower limit £14,250. A person with assets above the upper capital limit will be deemed to be able to afford the full cost of their care.

Mandatory property disregard

11. In certain circumstances, the value of the person’s main or only home must be disregarded. Section 45 of Annex B states:

“…A local authority must therefore disregard the value of a person’s main or only home for 12 weeks in the following circumstances…

(a) when they first enter a care home as a permanent resident…”

Information and advice

12. Chapter 3 of the Statutory Guidance sets out in detail the need for the for councils to provide appropriate advice at the right time in order to make informed decisions about their care and how to pay for this.
13. I quote below and have highlighted sections of the guidance:

“3.19 Local authorities should ensure that information supplied is clear. Information and advice should only be judged as clear if it is understood and able to be acted upon by the individual receiving it…”

“3.21 All reasonable efforts should be taken to ensure that information and advice provided meets the individual’s requirements, is comprehensive and is given at an early stage. Local authorities must seek to ensure that all relevant information is available to people for them to make the best informed decision in their particular circumstances, and omission or the withholding of information would be at odds with the duty as set out in the Act.”

“3.32 The type, extent and timing of information and advice provided should be appropriate to the needs of the person… It is also important that the right level of information and advice is provided at the right time, recognising that a person’s need for information or advice may vary…”

“3.33 There are clear messages from past public consultations and from research that people ‘don’t know what they need to know’ in relation to their care and support. This can prevent them asking the right questions and can mask the articulation and identification of needs that they have, for which they could benefit from information and advice. All contact for information and advice should take account of this and be able to respond with an assessment of needs when appropriate.”

“3.39 Care decisions are often made quickly and at a time of crisis, and they can often involve family and friends in the process. The local authority must have regard to the importance of identifying those who may benefit from financial advice or information as early as possible. This should be complemented by broader awareness raising about how care and support is funded… Actions taken by a local authority to do this should include…

• considering a person’s need for financial information and advice when they make first contact with the authority and throughout the assessment, care and support planning and review processes.”

“3.43 The local authority must provide information to help people understand what they may have to pay, when and why and how it relates to people’s individual circumstances. This must include the charging framework for care and support, how contributions are calculated (from both assets and income).”

“3.44 …Local authorities should seek to give information that would be particularly pertinent to a person’s individual circumstances… This will be of particular relevance where a person will be meeting the total cost of care and support themselves…”

“3.47 The local authority must offer to consider a person’s specific circumstances and provide them with information about the methods of paying for their care and support that may be available to them… They should advise people of the ways to pay that others in similar circumstances would usually consider and the range of information and advice they should be considering to help make their decision.

14. Section 9 of the Statutory Guidance contains information about deferred payment schemes.

“9.30 If a local authority identifies someone who may benefit from or be eligible for a DPA or a person approaches them for information, the local authority must tell them about the DPA scheme and how it works. This explanation should, at a minimum…

• note the existence of the 12-week disregard…”

“9.33 Where relevant, local authorities should provide information and advice on DPAs at the earliest appropriate opportunity during the period of the 12-week disregard…”

What happened

15. In December 2018, Mrs D was admitted to hospital. On discharge, she stayed with one of her daughters, Ms D. The family felt that Mrs D could not return to her own home, because she could not look after herself, so they found a suitable care home. Mrs D moved there on 9 January 2019 for an initial 48-hour assessment and the family agreed that she should remain there permanently from 11 January.
16. On 14 January, Ms D telephoned the Council’s Area Referral Management service (ARMS) and explained that her mother had moved into the care home. Mrs D was not at this point receiving services from Adult Social Care. However, Ms D wanted social services support for her mother alongside that of the care home as her mother had dementia and was having to pay for her own hygiene products.
17. A Contact Assessment Officer called Ms D back on 17 January. She established that Mrs D was self-funding and determined that the Council was not required to undertake an assessment. She advised Ms D to contact the Council to arrange a care needs and finance assessment when her mother’s savings fell below the £23,250 savings threshold.
18. Mrs C, another of Mrs D’s daughters, contacted ARMS on 29 January and spoke with another officer. She explained that her mother had moved to the care home due to her poor health and mobility and because she was isolated in her first-floor flat. She said that she and her sister had a Power of Attorney for finances and they were seeking more information on deferred payments. The officer provided a contact number for the Council’s Finance Team and explained that the Council would have to carry out a care needs assessment if the family wanted financial support. The officer recorded that Mrs C would contact the Finance Team and report back as appropriate.
19. On 30 January, Ms D contacted the Council and explained that she was waiting for her mother’s house to be sold and had been advised that the Council needed to carry out a financial assessment to help pay for the care until the house was sold. The first officer called Ms D back and was told that the care home fees were not being paid. Ms D said that her sister, Mrs C, managed the finances and had been told to contact the Finance Team the day before, but had not previously been told about interest charges. She asked the officer to contact her sister.
20. The officer spoke with Mrs C the next day. The notes record that Mrs C advised her that the care home would support the family with funding until the house was sold so she confirmed that the referral could be closed. The CAO advised Mrs C to contact the Council for a financial assessment if circumstances changed or her mother’s savings were depleted.
21. Mrs C contacted ARMS again on 21 February to ask for a financial assessment. On 25 February, the officer made a referral for both a financial and care needs assessment.
22. A financial assessment officer undertook a financial assessment with Mrs C by telephone on 14 March. He emailed her the completed form and the deferred payment information pack. This referred to the 12-week property disregard.
23. The family then took Mrs D on holiday in March, returning on 28 April. On her return, Ms D said that her mother no longer wanted to stay at the care home as she felt it was unsuitable. The family would therefore try and find her an alternative placement.
24. The Council completed a care needs assessment on 8 May, which confirmed that Mrs D had eligible needs. Mrs D’s flat was also sold in May.
25. Following a discussion with Mrs C on 16 May, the Council agreed to apply a total of six weeks’ property disregard from 21 February, when the family requested an assessment, up to 5 April 2019, which is 12 weeks from the date when Mrs D because a permanent resident at the home.

My assessment

When did the 12-week mandatory property disregard begin?

26. The Council has explained that Mrs D moved into the home on 9 January 2019 for a 48-hour assessment, and the family agreed to a permanent placement on 11 January. Although the Council was aware of this date, it did not know if the stay was permanent until the needs assessment was undertaken.
27. Under the Care Act, the relevant date for the application of the 12-week disregard is the date is on which permanent care began, whether self-funded or funded by the Council. I consider that the Council was therefore correct to treat 11 January 2019 as the start date for the 12-week property disregard period.

Did the Council provide appropriate advice to Mrs C?

Care home advice

28. The Council says the family made a private arrangement for Mrs D’s care, so it would have expected the care home to have given them information about the 12-week disregard rule, and signpost them to the Council’s website.
29. I appreciate that the Council might have expected the care home to provide advice on the 12-week disregard, but this does not override the Council’s own duty to provide information, which is clearly set out in the Statutory Guidance. In any event, the care home advised the family to contact the Council, which they did on 14 January. It was then for the Council to give the family suitable advice.

Inconsistent contact

30. The Council says the case records show contact at various times from the four different sisters, and this contact has not always been coordinated nor consistent in approach. However, Mrs C says it had been made clear to the Council that she was the point of contact on financial matters.
31. The Statutory Guidance makes clear that, when moving relatives into a care home, families often have to take quick decisions about care and finances within an unfamiliar framework and under stressful circumstances. The fact that the Council received contact from several family members highlights the need to provide appropriate information, and preferably in writing.

Advice about the 12-week disregard

32. The Council says that when a care home placement is permanent, if the person’s needs meet the eligibility criteria for care and support, it will assist with funding from the date the person first contacted them for support, provided their assets have dropped below the upper capital limit of £23,250.
33. It says that when the family first called ARMS, Mrs D was funding her own care and had not reached the upper capital limit. It considers that officers acted appropriately when contacts were made in January and February 2019 and the family understood that, if they needed support to fund Mrs D’s placement, the Council would have to undertake care needs and financial assessments.
34. The Council’s statement that Mrs D had not fallen below the upper threshold appears incorrect. The financial assessment dated 14 March 2019 shows that, on that date, Mrs D had assets of £3,366 in addition to a house valued at £155,000. The financial assessment also states: “The care home rate is currently £760.00 for week, increasing to £790.00 per week from April 2019, currently the care home have not been funded at all for the client's stay”.
35. So, it seems that Mrs D’s financial assets were considerably below the upper capital limit when her family first contacted the Council on 14 January 2019.
36. The contact notes from 17 January 2019 state: “[Mrs D] is self funding her placement and no assessment is required at present. I advised [Ms D] that should her mother’s savings deplete to below threshold of £23,250 then to contact us to arrange a Care Needs and Finance Assessment”.
37. However, the officer neither confirmed whether Mrs D had financial assets above the threshold, separate from the value of her home, nor gave advice about the implications of this in respect of the 12-week property disregard. This was fault. Had the officer done so at that stage, the family could have made an informed choice and would likely have applied for a financial assessment at that stage.
38. There was further contact from the family on 29 January 2019, with the family “seeking more information about deferred payments”. The officer provided a contact number for the finance team and noted that “if family were seeking support to fund we would have to allocate and undertake a care needs assessment. [Mrs C] will contact finance and call back as appropriate”. Although the family had expressed a clear interest in deferred payments, no reference was made to the 12-week property regard, despite the clear requirement to do so under section 9 of the Statutory Guidance. This was fault.
39. The contact on 30 January 2019 recorded that “[Ms D] advised her mother’s care home fees are currently not being paid and is querying about an assessment for deferred payments whilst the sale of Mrs [D]’s property is going through”. This was a clear statement that the care home fees were not being paid out of capital but would be paid from the proceeds of sale of the house. Despite this, the Council again did not provide advice in respect of the 12-week property disregard or its implications. This was fault.
40. The Council has suggested that the notes of the conversation on 31 January 2019 shows that that Mrs D’s savings had not yet depleted. I do not agree. The notes state that “[Mrs C] advised she had found out from [the care home] that they will support with the funding until the sale of the house is complete so confirmed that this referral can be closed”. The officer also stated, “I advised [Mrs C] that should circumstances change or if savings deplete then to contact us to organise a financial assessment”.
41. So, despite it being clear that the proceeds of the property sale would be used to pay the care home fees, there was still no reference to the 12-week property disregard or advice given as to its implications. This was fault.
42. Had the Council sent the family a copy of its Guide for people funding themselves in residential and nursing care homes, they would have been aware of the 12-week period. However, its Guide to funding yourself in residential and nursing care makes no reference to the 12-week disregard despite the time-sensitive nature of that disregard.

Conclusion

43. For the reasons set out above, I consider that the Council failed to comply with its duties under the Care Act.
44. The Statutory Guidance makes clear the need for the Council to provide the right level of information and advice at the right time to people (including carers) who are likely to need of care and support, whether or not they have presented for assessment, in order to allow them to make well-informed choices. Moreover, where a DPA may be involved, the Council should explain how this works and inform them about this (and the existence of the 12-week disregard) as soon as possible within the period of the 12-week disregard.
45. In this case, the Council did not take proper account of the fact that the family would be paying the care home fees from the sale of Mrs C’s home or confirm whether Mrs C had other assets. As a result, it failed to provide appropriate advice and information to the family which would have allowed them to make informed decisions about Mrs D’s financial arrangements.
46. Had it done so, it is very likely that the family would have sought a financial assessment from the outset, in which case the 12-week property disregard would have applied from the date of the family’s first contact with the Council on 14 January 2019.
47. The Council should therefore backdate the 12-week disregard to 14 January 2019, and reimburse the payments made between then and 20 February 2019. It should also take steps to ensure that officers provide suitable advice and information at the appropriate time.

Agreed action

48. The Council has agreed to the Ombudsman’s recommendation that, within one month it:
• apologise to Mrs C and Mrs D;
• backdate the 12-week property disregard to the date of Mrs C’s first call, so that Mrs D is refunded the payments made for the period 14 January to 20 February 2019;

and within three months, it:

• review its procedures to ensure that it complies with its duty to provide appropriate and timely information, including when it provides information in writing;
• ensure that officers are reminded of its duties under the Care Act; and
• ensure that its publication for self-funding residents contains sufficient information to make them aware of the 12-week property disregard and any time constraints.

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Final decision

I have closed my investigation because I consider that the agreed actions represent an appropriate remedy for the injustice caused to Mrs C and Mrs D.

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Investigator's decision on behalf of the Ombudsman