Summary: Mrs E complains about the Council’s demand that she pay £40,805.15 for her late husband’s care home charges, and about the lack of advice provided to her. The Ombudsman considers the Council was wrong to seek to recover this sum, did not advise her properly about her husband’s Personal Expenses Allowance or carry out annual reviews of her husband’s care. The Council has agreed to cancel the £40,805.15 care home charge, apologise to her, pay her £1,120 in recognition of the distress caused and costs unnecessarily incurred, and review its procedures.

The complaint

1. Mrs E complains that:
• The Council failed to provide adequate advice about care home charges when she and her late husband sold their former home in 2017 to buy a new property for her closer to his care home.
• After her husband passed away, it wrongly sought to treat the value of her late husband’s share of their former home as notional capital when calculating the contribution towards his care home fees. The threat of recovering £40,000 from her and the risk of losing her home only six weeks after her husband passed away caused her enormous distress.
• There was no social services involvement with her or her late husband after they moved to another part of the country in 2017. The Council did not carry out annual reviews of her husband’s care needs or put arrangements in place to deal with her husband’s changing needs. This meant that she had to make all the arrangements for her husband’s care.
• The Council also did not properly advise her that some expenses might be offset against his care home fees.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, 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)

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How I considered this complaint

5. I have considered Mrs E’s written complaint and supporting correspondence and discussed her complaint with her. Some of these matters occurred longer ago than 12 months or have not yet been considered through the Council’s complaints procedure. However:
• I consider it reasonable to look at the Council’s advice in 2017 about property disregards in relation to the financial assessment because it only recently told Mrs E that charges were due. I also consider it reasonable to consider whether the charges for Mr E’s care are correct, including whether the Council should have allowed for some of costs relating to Mr E’s health problems.
• I consider it reasonable to investigate the way the Council assessed Mr E’s needs, because Mrs E only recently become aware that his needs should have been reviewed annually. I do not consider it reasonable for the Council to first have an opportunity to consider this matter through its own complaint procedures. This is because this is relevant to my investigation of the charges due and I consider it in the public interest to investigate whether the Council has appropriate arrangements in place.
6. I have made enquiries of the Council and considered its response and supporting papers. I have had regard to relevant legislation and guidance. I have also sent Mrs E and the Council a draft decision and invited their comments.

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What I found

Legal and administrative background

Charging for permanent residential care

7. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When a council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their care.
8. The rules state that people who have capital over the upper capital limit are expected to pay the full cost of their residential care home fees. However, once their capital has reduced to less than the upper limit, they only have to pay an assessed contribution towards their fees.
9. Councils must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.

Treatment of capital

10. Annex G of the guidance covers the treatment of capital and sets out when capital should be included or disregarded when assessing contributions.

Notional capital

11. In some circumstances a person may be treated as possessing a capital asset even where they do not actually possess it. This is called notional capital.
12. Notional capital may be capital which:
• would be available to the person if they applied for it;
• is paid to a third party in respect of the person;
• the person has deprived themselves of in order to reduce the amount of charge they have to pay for their care.

Property disregards

13. In some circumstances, the value of the person’s main or only home must be disregarded. This includes where the person no longer occupies the property, but it is occupied in part or whole as their main or only home by the person’s partner.

“26-week disregard”

14. Some capital assets must be disregarded for at least 26 weeks in a financial assessment. This includes capital received from the sale of a former home where the capital is to be used by the person to buy another home.

Deprivation of assets

15. Annex E of the guidance covers deprivation of capital. It includes the following:
• When undertaking or reviewing a financial assessment, a local authority may identify circumstances that suggest a person may have deliberately deprived themselves of assets to reduce their contribution towards the cost of their care. But deprivation should not be automatically assumed. There may be valid reasons why someone no longer has an asset and a local authority should ensure it fully explores this first.
• Deprivation of assets means where a person has intentionally deprived or decreased their overall assets to reduce the amount they are charged towards their care. This means that they must have known that they needed care and support and have reduced their assets to reduce the contribution they will be asked to make towards the cost of that care and support.
• A person can deprive themselves of capital in many ways, but common approaches may be: (a) a lump-sum payment to someone else, for example as a gift; (b) substantial expenditure has been incurred suddenly and is out of character with previous spending.
• Questions of deprivation therefore should only be considered where the person ceases to possess assets that would have otherwise been taken into account for the purposes of the financial assessment or has turned the asset into one that is now disregarded.
16. The guidance includes an example of where deprivation has not occurred:

“Max has moved into a care home and has a 50% interest in a property that continues to be occupied by his civil partner, David. The value of the property is disregarded whilst David lives there, but he decides to move to a smaller property that he can better manage and so sells their shared home to fund this.

At the time the property is sold, Max’s 50% share of the proceeds could be taken into account in the financial assessment, but, in order to ensure that David is able to purchase the smaller property, Max makes part of his share of the proceeds from the sale available.

In such circumstance, it would not be reasonable to treat Max as having deprived himself of capital in order to reduce his care home charges.”

Treatment of income

17. Annex C of the guidance covers the treatment of income. It contains a section on Personal Expenses Allowance (PEA) which includes the following:
• The PEA is the weekly amount that people receiving local authority-arranged care and support in a care home (residents) are assumed to need as a minimum for their personal expenses and local authorities must apply this.
• It is intended to allow residents to have money for personal use. Based on a financial assessment of their resources, individuals must be left with the full value of their PEA. It is then up to them to determine how they spend it.
• Local authorities, providers of accommodation, and residents are reminded that the PEA should not be spent on aspects of care and support that have been contracted for by the local authority and/or assessed as necessary to meet the person’s eligible care and support needs by the local authority or the NHS. Neither local authorities nor providers have the authority to require residents to spend their PEA in particular ways and, as such, should not do so. Pressure of any kind to the contrary is extremely poor practice.

What happened

18. Mr and Mrs E previously lived in and jointly owned their home which they had bought several years earlier. They each owned 34.5% of the property and their daughter, F, and son-in-law each owned 15.5%.
19. Mr E had started to show signs of dementia and Mrs E provided care for her husband at home. In July 2015, the Council also started providing domiciliary care for Mr E. It undertook an assessment of Mr E’s finances and, based on his income and savings, assessed him as having nil charge to pay.
20. In late 2016, Mrs E was unwell and was admitted to hospital. As she could not care for her husband, he entered a care home for short-term care. However, as Mrs E remained unwell, the family agreed that Mr E should move into a permanent care in a home close to where Mr and Mrs E’s daughters live, so they could provide support.
21. Mrs E’s other daughter, G, asked the social worker dealing with Mr E’s case what would happen in respect of Mr E’s care charges if Mr and Mrs E were to sell their house to buy a property close to family. G explained that her mother would need to use the sale proceeds to buy a new property. However, this would not be enough to buy a property, so her sister, F, would also take out a mortgage.
22. The social worker spoke with a financial assessment officer. She asked what would happen if Mrs E sold her home and moved in with her daughter, leaving money in the back account until she purchased a new property. She noted that:

“[The finance officer] has advised that if there was any capital gained this would need to be seen as 50/50, also as long as the property they purchase has Mr [E]’s name on the deeds [t]his would be ok, though if not then his 50% would need to be factored in with the financial assessment. Also if the monies were to remain in the account the CRAG rule state this can happen for up to 26 weeks, before 50% is taken into consideration for his contribution, though if there is a delay then finance need to be made aware and they can make some allowances though these discussion[s] need to take place between the family and finance. This will be relayed to [daughter G] when meeting with her on 19/1/1[7].”

23. The social worker completed a care and support plan on 23 January 2017. This makes no reference to the financial implications of the sale of the property. The Council then carried out an assessment of Mr E’s finances. Mrs E remained in the family home, so the Council disregarded its value from the assessment, in line with the regulations.
24. In May 2017, Mr E moved into residential care in a home in London. Although Mr E had moved, the Council was funding his care and agreed to continue to coordinate his social care.
25. On 3 October 2017, a social worker undertook a telephone assessment of Mr E’s care and support needs. She spoke with Mrs E and her daughter, G, who reported no major issues and said that Mr E was making good progress. As all parties were happy with the situation, the social worker closed the case for annual review and sent them a copy of the review.
26. Mrs E sold her house on 6 October 2017 for £240,000. Mr and Mrs E’s net share of the proceeds was around £163,000, of which around £149,000 was used to purchase a two-bedroom flat for Mrs E in London. In order to buy the flat, Mrs E’s daughter, F, also took out a £215,000 mortgage and paid the balance of £58,000.
27. In September 2018, the Council’s Debt Recovery Team telephoned Mrs E’s daughter, G, to say that there were invoices outstanding for Mr E’s domiciliary care. G provided Mrs E’s new address and she sent cheques to the Council in respect of the invoices, one of which she queried.
28. In November 2018, Mrs E wrote to the Financial Assessments Team. She said her husband had prostate cancer and had been doubly incontinent since June 2018, and it was costing her more than £90 a month for incontinence pants (in fact more than £140 a month). He also had diabetes and she was having to pay £37 every six weeks for a chiropodist to visit. She said she took her husband to all his appointments and had to pay the cost of petrol and parking charges. She also had to pay for personal items such as toiletries, clothes, and haircuts. She asked the Council to consider the costs of meeting her husband’s needs.
29. In January 2019, the Council responded to her request for allowances to be made for her expenditure. It initially sent its response to the previous address but then resent it to the current address and updated its records.
30. The Council explained that, for 2018/19, Mr E’s PEA was £24.90 per week. It said it could not make any further allowances for specific expenses such as incontinence pads or chiropody visits. It suggested that Mr E might be entitled to support from the NHS, that Mrs E ask the care home to request a continence assessment from the District Nurse, and that she check whether the NHS would provide chiropody free-of-charge.
31. Mr E sadly passed away at the beginning of April 2020. Mrs E notified the Council in early April that Mr E had passed away and the Council undertook an updated financial assessment. It noted that Mr E had jointly owned his former home and, based on a share of ownership of 25%, he would have been entitled to £60,000 of the sale proceeds.
32. As Mr E’s name was not on the deeds of the new flat, the Council decided that it should treat his share of the sale proceeds as nominal capital for the purpose of the financial assessment. It therefore decided that he was liable for the full costs of his care from 6 October 2017, when his home was sold, until 8 August 2018, when his capital would have fallen below the threshold. This amounted to £40,805.15. It then wrote to Mrs E asking her to pay this sum.
33. Mrs E wrote to the Council to query this. She said she had used the sale proceeds buy a new flat closer to her husband and had understood that she would have no liability for her husband’s care home charges provided she had bought a new home within six months. She said she could not afford to pay this sum without having to sell her home. She said this was causing her great distress, particularly as she was still trying to come to terms with the loss of her husband.
34. The Council considered Mrs E’s comments and complaint but concluded that it would not disregard Mr E’s share of the sale of their home because his interest had not been protected by registering him as a joint owner of the new flat.
35. Mrs E complained to the Ombudsman. The Council accepted that there had been some fault on its part, as there should have been annual reviews of Mr E’s care needs, and the financial assessment was based on the wrong ownership share. It remained of the view that it had been entitled to have asked Mrs E to pay the full cost charges but decided as a “goodwill” gesture not to do so. It explained that it could not rectify the situation by adding Mr E’s name to the property deeds as he had passed away.

My assessment

Advice about disregards of capital

36. Mrs E was aware that she needed to buy a new property within six months in order for the proceeds of the sale to be disregarded automatically from the financial assessment. That was the correct advice from the Council, in terms of the “26-week disregard".
37. I note that the financial assessment officer referred to the rules in the CRAG Guidance. Although the current guidance is similar in many respects, the CRAG Guidance was replaced by the Care Act Guidance on 1 April 2015, so the officer’s reference was to obsolete guidance.
38. The financial assessment officer told the social worker that Mr E’s interest in the property would have needed to be protected by putting his name on the deeds of the new property. However, the Council has provided no evidence that it told the family that Mr E’s name would need to be put on the deeds of the new property. I cannot therefore determine that the Council provided such advice.

Request for repayment of care home charges

39. The Council disregarded the value of Mrs E’s former home while she was still living there. This was correct and was in accordance with the Care Act Guidance.
40. The Financial Assessment Team was aware in January 2019 that Mrs E had moved from her former home, though the Council says the family had not informed it of the sale of the property, as per the terms of its agreement. When it learnt that Mr E had passed away, it established that the former home had been sold and that Mr E’s name was not on the deeds of the new property.
41. As Mr E’s name was not on the deeds, the Council was entitled to consider whether this should be regarded as “deprivation of assets” and whether further charges should have been payable based on Mr E’s sale of the share proceeds being treated as “notional capital”.
42. The fact that Mr E was not the joint legal owner of the new flat does not in itself mean that the Council was entitled to treat his share of sale proceeds of the previous property as notional capital. Rather, the guidance requires the Council to consider whether a person has intentionally decreased their overall assets in order to reduce the amount they are charged towards their care.
43. The Council did not undertake this essential part of the assessment. This was fault. I have therefore considered whether it is likely that the Council would have reached a different decision on this matter had it considered the matter properly.
44. It seems quite clear that Mrs E needed to use both her and her husband’s share of the proceeds from the sale of her former home in order to be able to buy a replacement home close to her husband in a more expensive part of the country. This is supported by the fact that could not afford the cost of the flat without substantial help from her family.
45. Moreover, the guidance sets out an example of a case where deprivation has not occurred (referred to in paragraph 16 above). This is almost identical to Mrs E’s circumstances. I note that this example makes no reference to any requirement to maintain the same share of ownership.
46. I consider that any reasonable assessment, using the criteria set out in the guidance, would have concluded that there was no basis for the Council to recover the full cost of Mr E’s care from Mrs E. The failure to consider this matter properly was fault and resulted in great distress to Mrs E at a time when she was already grieving the loss of her husband. I consider that a financial remedy is appropriate in respect of the distress this caused Mr E.
47. The Ombudsman would normally recommend a payment in the range of £100-£300 for distress. Given that Mrs E was recently bereaved, I consider that the higher end of that range would represent a suitable remedy for the distress she experienced.
48. I would also observe that the Council’s calculation was based on the wrong share of ownership of the property and on the sale price of the property, without taking account of sale costs. So, even if the Council had been entitled to seek this further payment, the charges indicated were based on the wrong sum.

Charges and Personal Expenses Allowance

Personal Expenses

49. I see no fault in the Council’s response to Mrs E that personal expenses (such as toiletries, clothes, and haircuts) would generally be covered by the PEA (unless specifically related to a disability).

Chiropody

50. It would generally be the case that the NHS would provide chiropody for patients with diabetes, where there was an assessed need, so I see no grounds to question the Council’s refusal of this as an expense.

Incontinence

51. As the Council has also advised, the NHS may provide incontinence pants/pads, though this may depend on the policy of the local NHS authority. It was therefore reasonable for the Council to advise Mrs E to approach the NHS about this.
52. Under the local NHS policy, only a portion of such costs would be covered. Mrs E says the NHS also told her it would not cover her requested costs. However, the Council did not advise Mrs E that she should come back to the Council for further consideration of the request if the NHS did not agree to this. This was fault.

Transport

53. Mrs E asked if the Council could take account of the petrol and parking costs she was incurring taking her husband to appointments.
54. The Council did not respond on this point, which could reasonably be considered an allowable expense. I therefore recommend that the Council reimburse Mrs E a nominal £20 per month for the 16 months from December 2018 to March 2020.

Lack of ongoing involvement from Social Services

55. Mrs E has expressed concern that this meant that she and her family had to deal with her husband’s care arrangements on their own.
56. The Council undertook a telephone review of Mr E’s care in October 2017, at which point Mrs E and her daughter were happy with the care provision in place. The Council then undertook no further review of Mr E’s care arrangements before he passed away in April 2020.
57. Section 13.32 of the Care Act Guidance says:

“It is the expectation that authorities should conduct a review of the plan no later than every 12 months”.

58. Section 6.78 says:

“Where a person has both health and care and support needs, local authorities and the NHS should work together effectively to deliver a high quality, coordinated assessment. To achieve this, local authorities should:

• shape the process around the person, involving the person and considering their experience when coordinating an integrated assessment;
• work with other professionals to ensure the person’s health and care services are aligned. This will require flexibility of systems where possible, for example when sharing information. It will also be strengthened by a culture of common values and objectives at frontline level - joint visits can be helpful here.”
1. The Council should have continued to undertake reviews, on request, and at latest within twelve months of the previous review. Had it done so, as Mrs E had raised concerns about the costs of meeting some of her husband’s health-related needs, this matter could and should have been addressed through a co-ordinated assessment with the NHS. This would likely have identified an unmet need in respect of meeting the costs associated with Mr E’s incontinence.
2. I cannot determine how much of the costs might have been covered by the NHS or by an increase in Mr E’s PEA. However, had the Council undertaken a further review of Mr E’s care or advised Mrs E that she could request an increase in Mr E’s PEA, if the NHS would not cover Mr E’s incontinence-related costs, then I consider it likely that Mrs E would not have had to pay all those costs.
3. I consider that the Council should therefore pay Mrs E £500 in respect of the distress and hardship caused. The Council should also apologise to Mrs E and her family for this failure to review Mr E’s needs and to provide appropriate assistance in managing Mr E’s care.
4. The Council says it recognises that the lack of assessment has been an issue not only for Mr E but for many others who receive care and support funded by the Council. It has explained that adult care services are currently undergoing a significant restructure which includes a Care Home Review Team which will ensure reviews both in and out of county are carried out in a timelier manner.

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Agreed action

63. In addition to cancelling the £40,805.15 care home charge, the Council has also agreed to, within one month of the decision date on this complaint:
• apologise to Mrs E for failing to consider the repayment properly with regard to the Care Act Guidance, the failure to carry out annual reviews of Mr E’s care and to provide the appropriate support and advice;
• pay Mrs E £300 for the distress she unnecessarily experienced at the prospect of having to sell her home following the recent loss of her husband;
• pay Mrs E £320 (£20 x 16 months) towards the cost of petrol and parking;
• pay Mrs E £500 in acknowledgment of the of the distress and hardship she experienced as a result of her unnecessarily incurring the full cost of providing for her late husband’s incontinence care;

and within three months:

• confirm that it has arrangements in place such that annual reviews are undertaken both within and outside the Council’s area;
• ensure that officers are familiar with the relevant sections of the Care Act Guidance and the Charging Regulations in respect of deprivation of assets and how this should be considered; and
• ensure that officers are also familiar with the need to consider whether adjustment to the PEA may be appropriate when undertaking assessments of care charges and that they are reminded to provide appropriate advice on this.

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Final decision

64. I have closed my investigation because I consider the above agreed actions are a suitable remedy for the injustice caused to Mrs E.

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Investigator's decision on behalf of the Ombudsman