Summary: Mr X complained Council failed to respond to his questions, or provide details of his late father in law’s financial assessments or care charges, and wrongly instructed solicitors to recover the disputed care charges. The Council’s failure to provide full and accurate information about Mr Y’s liability for his care charges, or how this had been assessed amounts to fault. This fault has caused Mr X an injustice.

The complaint

1. The complainant, whom I shall refer to as Mr X complains Council failed to respond to his questions, or provide details of his late father in law’s financial assessments or care charges, and wrongly instructed solicitors to recover the disputed care charges. Mr X says he has gone to significant time and trouble trying to resolve the matter, and it has caused significant stress for him and his wife.

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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. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Charging for care

5. Local authorities have a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs. In both cases, a local authority has the discretion to choose whether or not to charge.
6. The Care Act 2014 and the associated Care and Support Statutory Guidance set out the rules the Council must follow when undertaking a financial assessment to decide how much a person has to pay towards the costs of both non- residential and residential care.
7. The guidance says people should be able to spend the money they have saved as they wish. However, it is also important people pay their fair contribution towards their care and support costs. Local authorities should ensure people are not rewarded for trying to avoid paying their assessed contribution. Councils must therefore assess a person to determine whether they have intentionally deprived themselves of assets to avoid paying care fees.
8. A person can deprive themselves of capital in many ways, for example by making a lump sum payment to someone else as a gift. Local authorities should not assume someone has intentionally deprived themselves of assets to reduce their contribution to care fees. The guidance says there may be other valid reasons.
9. In deciding whether the purpose of the deprivation was to avoid care fees, local authorities should consider:
• Whether avoiding the care and support charge was a significant motivation in the timing of the disposal of the asset; at the point the capital was disposed of could the person have a reasonable expectation of the need for care and support?
• Did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?
10. If a local authority decides a person has deprived themselves of assets to avoid paying care fees, it may treat those assets as if the person still owns them (notional capital) in its financial assessment.

What happened here

11. Mr Y lived on his own and had received a package of care since 2015. The Council does not appear to have charged Mr Y for his care and support at this stage. The Council records show it initially assessed Mr Y as zero charge.
12. Mr Y was admitted to hospital numerous times over the next few years, following falls at home. On returning home he had several periods on non- chargeable reablement support for up to six weeks.
13. There is no record in the Council’s notes of any discussion with Mr Y or Mr X about the cost of Mr Y’s care. But in June 2018 the Council wrote to Mr Y advising him it had assessed he was responsible for the full cost of his care at £314.81 per week, from 18 June 2018. There is no record of the Council asking Mr Y to complete a financial assessment form in 2018. However, Mr Y had completed a financial assessment form in late 2015 which indicated he had significant savings, in excess of the threshold for funded care.
14. Mr Y’s daughter, Mrs X questioned the assessment and Mr Y’s ability to pay the full cost of his care. The Council did not respond to this letter, but in August 2018 asked Mrs X to complete a financial assessment form for Mr Y. Mrs X completed the form and confirmed Mr Y had savings of just over £10,000. There is no record of any correspondence from the Council to Mrs X or Mr Y regarding his finances following this assessment.
15. In July 2018 Mr X raised concerns about the care Mr Y was receiving. He was concerned carers were not attending as scheduled and had falsified the care records. Mr X noted a carer had not attended any of the scheduled visit on 10 July 2018, but had falsified the records, showing they had. The Council investigated the matter and confirmed that on many occasions over a four-week period carers had not completed the final visit of the day, despite claiming they had.
16. Following further hospital admissions, Mr Y moved to a care home in November 2018. The Council advised Mr X it would review this placement after six weeks, and that he should maintain the tenancy on Mr Y’s flat until then. The Council asked Mr X to complete a financial assessment form for Mr Y. Mr X completed the form and confirmed Mr Y had savings of just over £19,500. He subsequently provided bank statements.
17. In January 2019 Mr X contacted the Council as although Mr Y had now been at the care home for eight weeks, the Council had not carried out the six-week review. Mr X was concerned that Mr Y was still paying rent on his flat. The Council reviewed Mr Y’s placement in late January 2019 and confirmed it should continue long term. Mr X then ended Mr Y’s tenancy on his flat.
18. The Council then wrote to Mr Y, care of Mrs X, to advise he was responsible for the full cost of his accommodation at the care home, at a cost of £531.85 per week, as his capital was above the threshold of £23,500. Mr X questioned this charge and the Council’s handling of the matter. He noted the delay in completing the six-week assessment meant Mr Y had paid approximately £1000 in unnecessary rent, council tax and other costs. Mr X stated the care home had asked him to sign a placement letter showing Mr Y’s contribution towards his care was £138.10 per week.
19. Mr X subsequently received an invoice directly from the care home. He has paid Mr Y’s care charges in full, from when he moved there in November 2018, until his death in July 2019.
20. The Council’s response upheld Mr X’s complaint about the delay in completing the six-week review and confirmed it was addressing the issue to ensure reviews are carried out in a timely manner.
21. In relation to the financial assessment the Council stated it had carried out a number of assessments and there were discrepancies between the income declared on the forms. The Council was carrying out further work to resolve Mr Y’s financial position.
22. The Council confirmed it had raised a safeguarding alert in relation to concerns about the care Mr Y received at home. The care agency had investigated the matter and taken action in relation to the carer. It had made operational changes, including making more frequent checks and using its internal tracking system. The Council’s contract and monitoring team would also be monitoring the agency in relation to their provision of care and management of care workers.
23. The Council confirmed Mr Y would not be charged for the care he did not receive in July and August 2018. It noted there were outstanding charges on Mr Y’s account and asked Mr X to contact the charging team.
24. Mr X did not consider the Council’s response resolved the matter as it did not address the additional £1000 Mr Y had incurred as a result of the delay, nor did it address the detrimental impact the neglect in care had on Mr Y’s health. Although Mr Y had recently died, Mr X asserted the effect of the poor care he had received should still be recognised. Mr X subsequently confirmed he would assist the charging team in its investigation, but had yet to be contacted, or asked to provide any information.
25. The Council reviewed Mr X’s complaint and provided an updated breakdown of Mr Y’s home care charges. This showed the Council had deducted:
• £1,877.56 for the 41 days Mr Y had spent in hospital;
• £1,373.70 for the 30 days Mr Y had not received the agreed service.
26. This left outstanding charges of £3,846.85. The Council agreed to reduce this sum by a further £1000 in recognition of the additional costs Mr Y had incurred as a result of the delay in carrying out six-week review. In addition, the Council had deducted £200 as a symbolic payment to acknowledge the shortfall in service. This reduced the final outstanding balance to £2,646.85.
27. Mr X was not satisfied by the Council’s response. He had still not been contacted by the charging team and the Council had not explained how it had assessed Mr Y’s care charges. Mr X informed the Council he did not intend to pay the charges for Mr Y’s care at home given the significant failings in Mr Y’s care.
28. The Council noted Mr X had refused to speak to an officer from the charging team over the telephone and encouraged him to liaise directly with the team to resolve the outstanding issues relating to the financial assessments.
29. In November 2019 the Council instructed solicitors to recover the outstanding charges from Mr Y’s estate. The solicitors wrote to Mrs X requesting payment of £5274.41 plus interest and costs. Mr X challenged this and made a further complaint to the Council. He also asked the Ombudsman to investigate his complaint. The Council confirmed the sum passed to the solicitors was incorrect, and that the outstanding care charges were £3,846.85. The Council also confirmed it would be prepared to write the whole sum off in order to resolve Mr X’s complaint.
30. Mr X considers that in addition to writing off the cost of Mr Y’s care at home, the Council should also reimburse the £1000 in respect of Mr Y’s additional rent and costs; and should provide an explanation for Mr Y’s liability for the care home fees. The Council has since withdrawn this offer.

Analysis

31. It is unclear from the Council’s records what advice and information it gave Mr Y, or later Mr and Mrs X regarding the funding of Mr Y’s care at home, or in the care home. There are no clear records of any discussions about the cost or Mr Y’s level of contribution.
32. There is also a lack of clarity regarding Mr Y’s financial assessments and the basis on which the Council has determined Mr Y is liable for the full cost of his care. The Council appears to have determined Mr Y would be liable for the full cost of his care at home in June 2018 based on a financial assessment he had competed almost three years earlier. The financial assessment should have been based on up to date information. It was not appropriate to rely on information provided in 2015, which was not supported by bank statements, without confirming Mr Y’s current level of savings.
33. Given there were discrepancies in the financial information provided by Mrs X in August 2018, and Mr X in November 2018 I would have expected the Council to raise this directly with them. Particularly as the information they provided suggests Mr Y’s saving had fallen by over £80,000 between 2015 and 2018, during a period when Mr Y was incapacitated. However, there is no record the Council queried this with them, or Mr Y before determining Mr Y was responsible for the full cost of his care at the care home.
34. The Council subsequently told Mr X it was investigating the discrepancies, but there is no evidence it has told Mr X what the discrepancies were. Nor has it asked for records of specific bank accounts to identify current / closing balances or when and how the large sums of money were used.
35. I recognise that neither Mr X nor Mrs X had power of attorney to deal with Mr Y’s financial affairs, but it is clear from the documentation that the Council accepted they were assisting Mr Y with his finances. The Council liaised with them and asked that they complete financial assessment forms on Mr Y’s behalf. In the circumstances, if the Council considered Mr Y had additional bank accounts, or additional savings, not included on the financial assessment forms, I would have expected it to raise this with Mr and Mrs X at the time of the assessment.
36. The Council’s records suggest officers have attempted to address the discrepancies with Mr X, but he has refused to engage. Mr X disputes this and states that he would prefer to have a written record of matter, rather than discuss it over the telephone. There is no evidence the Council has set out its concerns or requested any specific information in writing as Mr X has requested.
37. I consider the failure to provide full and accurate information about Mr Y’s liability for his care charges, or how this had been assessed amounts to fault.
38. Having identified fault, I must consider whether this has caused Mr X a significant injustice. The lack of clarity and failure to provide Mr X the opportunity to resolve the discrepancies in Mr Y’s finances, combined with the Council’s attempts to recover outstanding charges for Mr Y’s care at home have caused uncertainty and put Mr X to unnecessary time and trouble.
39. The Council has offered to reimburse Mr Y the £1000 incurred in unnecessarily maintaining his tenancy while awaiting a review at the care home. This is an appropriate offer.
40. The Council had intended to offset the £1000 against the outstanding charges for Mr Y’s care at home. While offsetting payments in this way may be appropriate in certain circumstances, it would not be appropriate where the outstanding charges are in dispute. Until there is clarity regarding Mr Y’s financial assessments Mr X cannot be satisfied the Council has correctly charged Mr Y for his care at home, or the care home fees.

Agreed action

41. The Council has agreed to apologise to Mr X and pay him £200 in respect of the frustration and uncertainty he has experienced and unnecessary time and trouble he has been put to by the Council’s failure to provide full and accurate information about Mr Y’s liability for his care charges, or how this had been assessed.
42. The Council should carry out this action within one month of the final decision on this complaint.
43. The Council has also agreed to carry out a further assessment of Mr Y’s finances. This will require Mr X’s cooperation in providing full details of Mr Y’s savings and assets between 2015 and 2020. The Council should clearly identify the discrepancies in the financial information previously provided and set out in writing what information it will require from Mr X in order to complete the assessment. The Council should then provide Mr X with a copy of the completed financial assessment and confirm Mr Y’s liability for his care charges.
44. If this financial assessment determines Mr Y was not responsible for the full cost of his care, the Council should return any overpayments.
45. In addition, the Council has agreed to pay Mr X £1000 in respect of the costs unnecessarily incurred in maintaining his tenancy while awaiting a review at the care home. If the new financial assessment determines Mr Y was responsible for the full cost of his care and there are outstanding charges, the Council may choose to offset the £1000 against these charges.
46. Subject to Mr X providing the necessary financial information, the Council should carry out these actions within two months of the final decision on this complaint.

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Final decision

47. The Council’s failure to provide full and accurate information about Mr Y’s liability for his care charges, or how this had been assessed amounts to fault. This fault has caused Mr X an injustice.

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Investigator's decision on behalf of the Ombudsman