Summary: There is no evidence of fault by the Council when it made arrangements to charge for adult social care. There was a significant delay in responding to the complaint, which is fault and caused injustice. But the Council has already adequately remedied this. For this reason, the Ombudsman has completed his investigation.

The complaint

1. I will refer to the complainant, who has passed away, as Mrs W. The late Mrs W is represented in her complaint by her daughter, to whom I will refer as Mrs B.
2. Mrs B complains the Council has charged Mrs W’s estate for residential care she received in the period immediately before her death. Mrs B says the Council led her to believe there would no cost for Mrs W’s care home placement.

Back to top

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. 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)

Back to top

How I considered this complaint

5. I reviewed the Council’s financial assessments of Mrs W, and its correspondence with Mrs B.
6. I also shared a draft copy of this decision with each party for their comments.

Back to top

What I found

7. Mrs W was receiving a care package while still living at home. The Council had assessed her finances in September 2017, and decided she should contribute £9.11 per week to her care. Mrs W paid these charges by Direct Debit.
8. In February 2018, Mrs W suffered a stroke and was admitted to hospital. On 7 March, the Council completed a care review, and it was agreed Mrs W should be discharged to a care home.
9. The Council discussed funding for Mrs W’s placement with her family. The Council said Mrs W’s placement in the home would be subject to a 12-week disregard, subject to agreement by its finance team.
10. Mrs W entered a care home on 26 March.
11. On 25 April, Mrs B’s sister contacted the Council to say Mrs W had not settled well at the home. A review meeting was arranged for 9 May, at which the Council agreed Mrs W would not become a permanent resident at the home. The Council reclassed her stay was reclassed as ‘temporary’, and agreed to consider alternatives, including a 24-hour live-in care at home.
12. Mrs B’s sister also asked Mrs W’s social worker to contact the Council’s finance team, as the family had not heard from it. The social worker did so and confirmed to the finance team Mrs W’s stay at the home was now temporary. A further review meeting was arranged for 9 July.
13. Before this meeting could take place, Mrs W passed away on 25 May.
14. On 29 June, the Council sent Mrs B an indicative financial assessment. This was based on the figures the Council already held for Mrs W’s income and capital. The Council had calculated Mrs W should contribute £126.45 per week to her care fees, beginning on the date of her admittance to the care home.
15. Mrs B’s sister called the Council on receipt of the financial assessment. She said Mrs W had been assessed in April, and the family had been told her placement was for reablement and would therefore be at no cost to her. The Council said Mrs W’s placement had been originally agreed under a 12-week disregard and this had been explained to the family at the time.
16. Mrs B submitted a complaint to the Council on 26 April 2019. She said she had been in contact with various Council departments over the previous months, but had had no answers to her questions.
17. Mrs B said there had been no indication from the Council Mrs W’s placement would be chargeable before the receipt of the financial assessment in June 2018, and that Mrs W had not entered into a contract to pay these charges. She also said Mrs W had been retrospectively charged for travel to a day centre (part of her domiciliary care package), even after she had been admitted to hospital and then the care home.
18. Mrs B also complained she had written to the Council in August, and had had no response until October, when the Council said it would reply with its findings the following week. She then heard nothing more until February 2019, and even then it had not been a substantive response.
19. Mrs B said the family may have made different choices about Mrs W’s care if they had been aware of the full facts, and asked the Council to resolve her complaint.
20. The Council replied on 9 May.
21. The Council reiterated Mrs W’s placement had originally been agreed under a 12-week disregard. It said, once the care home had confirmed Mrs W’s placement there, it had sent a letter of agreement, which explained her placement was at a cost of £670 per week, of which Mrs W’s contribution would be calculated on the basis of a financial assessment.
22. The Council acknowledged, and offered sincere apologies, for the delays in responding to Mrs B’s comments and complaint. The investigating officer explained this had been identified as “learning point for [her] development”.
23. The Council also accepted it had wrongly invoiced Mrs W for travel to the day centre after the end of her domiciliary care package. It confirmed this invoice had been cancelled, and the outstanding charges now stood at £1066.83, which was only for Mrs W’s stay at the care home.
24. Mrs B referred her complaint to the Ombudsman on 20 August. She reiterated the family had been told there would be no charge for Mrs W’s placement, and despite her complaint being upheld, they were still receiving invoices for the outstanding fees. Mrs B said she considered the Council should waive the fees.

Back to top

Legislative background

25. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge.
26. Where adults receive care and support from local authorities, they normally do so under the provisions of the Care Act 2014 and may have to pay for them, depending on financial eligibility criteria.
27. Where a council has decided to charge it must carry out a financial assessment of what the person can afford to pay. (Care and Support Statutory Guidance, section 8.16)
28. Section 8.2 of the Care and Support Statutory Guidance 2014 states “The overarching principle is that people should only be required to pay what they can afford”.
29. The Guidance also states “Where a person is a short-term… resident there is a degree of discretion or modified charging rules to take account of this. A short-term resident is someone provided with accommodation in a care home for a period not exceeding 8 weeks, for example where a person is placed in a care home to provide respite care. Where a person is a short-term resident a local authority may choose to assess and charge them based on the rules for care or support arranged other than in a care home”.
30. This means the Council can charge the person in the same way it would charge someone who was receiving care in their own home.
31. People in a care home will contribute most of their income, excluding their earnings, towards the cost of their care and support. Local authorities have discretion to apply a higher income allowance in individual cases, for example where the person needs to contribute towards the cost of maintaining their former home.
32. In some cases, the value of a permanent resident’s home can be considered as part of their capital. This is because they are not expected to return home, and so the property can be sold. The value of their property can be disregarded for the first 12 weeks of their stay in care, to allow time for it to be sold.
33. Where councils provide intermediate care and reablement support to those who need it, they must provide it free of charge for the first six weeks. (Care and Support Statutory Guidance, sections 2.60, 2.61)
34. Intermediate care and reablement are defined in law as facilities or resources provided to an adult by a council under the Care Act 2014.
35. Statutory guidance says there is a tendency for the terms ‘reablement’, ‘rehabilitation’ and ‘intermediate care’ to be used interchangeably. The guidance states intermediate care services “are provided to people, usually older people, after they have left hospital or when they are at risk of being sent to hospital.
36. Intermediate care is a programme of care provided for a limited period of time to assist a person to maintain or regain the ability to live independently – as such they provide a link between places such as hospitals and people’s homes, and between different areas of the health and care and support system – community services, hospitals, GPs and care and support”. (Care and Support Statutory Guidance, section 2.14)

Back to top

Analysis

37. Mrs B says the family was given no indication by the Council that Mrs W’s stay in the care home would be chargeable. She says the family was told it was a reablement placement, for which the Council would pay, and the first they knew of Mrs W’s charges was four weeks after she passed away.
38. I cannot say precisely what was discussed between the Council and family before and during Mrs W’s stay in the care home. I was not party to these conversations and there is no verbatim record.
39. However, I am satisfied, on the evidence, Mrs W’s placement at the home was never intended to be for reablement.
40. As described above, reablement placements are specifically for those considered likely to be able to return home after a few weeks in care. There should be set ‘reablement goals’ for them to reach, with the aim of regaining their independence.
41. Conversely, a 12-week disregard is to allow a person in care to sell their home, before its value is included in their financial assessment. This is only relevant where the person is not expected to return home, and so the home can be sold to pay for care.
42. So, for the Council to have agreed a 12-week disregard, it must have been considered (at that time) that Mrs W would not be returning home. It is clear, therefore, the Council did not view this as a reablement placement.
43. Before the 12-week period expired, Mrs W’s placement was reclassified as temporary. This was because she had not settled at the care home, and it was being considered whether she might be better off returning home, with 24-hour live-in care.
44. But temporary placements are not the same as reablement placements. It is evident Mrs W had significant care needs, and even if she returned home, would require constant care.
45. The change in placement type did mean the Council would no longer be able to take the value of Mrs W’s home into account. But she passed away before the expiry of her 12-week disregard anyway, and so this ultimately made no difference to what she was eventually charged.
46. The Council’s calculations for her entire stay in the home – whether under a 12-week disregard or as a temporary placement – were only based on her income, such as her pension. With her home excluded, Mrs W’s capital was below the lower threshold, and so this was not part of the Council’s considerations. I cannot see anything in the financial assessment to suggest the Council’s calculations were incorrect.
47. As I have said, I cannot pass judgement on how clear these arrangements were made to Mrs W’s family before her admission to the care home.
48. However, I note neither Mrs W, nor the family, was new to the charging arrangements for adult social care. The Council had previously assessed Mrs W for her contribution to her care package while she was still at home. Although an assessment for non-residential care takes different factors into account than one for residential care, broadly speaking they work in the same way.
49. The Council has provided a copy of Mrs W’s financial assessment for that time. It includes a list of declarations for the service user, or their representative (which in this case was Mrs B’s sister) to read and agree by signing. One of these reads:

“I understand that if I am admitted to a residential/nursing home, I will have to pay the charge according to my means from the date of admission…”

50. I note also the letter of agreement which the care home sent to Mrs B shortly before Mrs W’s admission there. As the Council says, this explains Mrs W’s overall charge - £670 – and that her contribution to this would be calculated on the basis of a financial assessment.
51. Taking this together, I do not consider the Council failed to make it adequately clear Mrs W’s placement was chargeable. I accept the family may have believed the placement would be funded by the Council; but I cannot say, on the evidence, this misunderstanding arose because of fault by the Council.
52. Mrs B complains it took until 26 June, four weeks after Mrs W’s death, before the Council provided a figure for her contribution.
53. I am unable to say conclusively whether the Council could have provided its assessment sooner. I note Mrs B says she sent financial information to the Council in April, although there is nothing in the evidence I have seen to indicate what this was.
54. I do note the June assessment was ‘indicative’, which appears to mean it was based on information the Council already had, and was possibly subject to change. It is arguable, therefore, the Council could have provided this sooner.
55. However, I cannot overlook the fact Mrs W passed away only eight weeks after her admission to the care home. This is a relatively short period of time, and I do not consider the Council’s failure to provide a figure in that time to represent a manifestly unreasonable delay.
56. In either case, the fact remains I see nothing to criticise in the actual figures the Council has produced. It has followed the correct procedure, and the calculations appear to be accurate. Even if the Council could have provided this a little sooner, I would not consider this a significant injustice. Mrs W, or her estate, would still have had to pay the same amount of money.
57. I have no grounds, therefore, to recommend the Council waive the charges. I also cannot see anything in the Council’s complaint response which could be read to indicate it was upholding this element of the complaint, as Mrs B said in her complaint to the Ombudsman.
58. I note the Council has accepted it wrongly invoiced Mrs W for part of her domiciliary care package after this had ended. This is unfortunate, but the Council has already cancelled this invoice and apologised for its error. I do not consider this a significant point and so I will not find fault here.
59. In addition, the Council has also accepted there was a significant delay in its response to Mrs B’s complaint. I do not have a copy of her correspondence between June and April, but I note the Council refers to having contacted Mrs B in October as part of its investigation. It is difficult to understand why it would then take until May for it to provide a substantive response to her complaint.
60. This delay is significant, and I consider it fault. Given Mrs B’s obvious anxiety to resolve the matter, I find the delay also amounts to an injustice.
61. However, I do not consider there is anything further for the Ombudsman to add here. The officer concerned accepted she was at fault, offered a sincere apology, and explained she was taking steps to improve her timeliness. In the absence of any wider, substantive injustice, this is an adequate remedy.

Back to top

Summary

62. There is no evidence of fault in how the Council explained the charging arrangements for Mrs W’s stay in the care home. I cannot say how well this was explained to her family during their meetings, but the evidence shows the family had already had experience of charging, and Mrs B’s sister had signed to say she understood Mrs W would be charged if she became resident in a care home. The care home’s letter of agreement also explained this.
63. The Council wrongly invoiced Mrs W for part of her domiciliary care package after it had ended. But this has been resolved and I do not consider it significant enough to find fault.
64. The Council’s delay in replying to Mrs B’s complaint amounts to fault, which caused her an injustice. However, this injustice has already been remedied and so I make no recommendations.

Back to top

Final decision

65. I have completed my investigation with a finding of fault causing injustice.

Back to top

Investigator's decision on behalf of the Ombudsman