Summary: Mr X complains the Council failed to deal properly with the charges for his late father’s residential care, including the appeal over his financial assessment, leaving them out of pocket and preventing them from making informed decisions about his care. The Council accepts there was room for improvement with some of its communications and has apologised. However, there was no fault affecting the Council’s decision on what Mr X’s father should pay.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council failed to deal properly with the charges for his late father’s residential care, including the appeal over his financial assessment, leaving them out of pocket and preventing them from making informed decisions about his care.

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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, sections 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Mr X;
• discussed the complaint with Mr X; and
• shared a draft of this statement with Mr X and the Council, and invited comments for me to consider before making my final decision.

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What I found

What happened

5. Mr X’s father, Mr Y, had dementia. He lived at home with his wife. She arranged for him to stay in a care home while she had an operation, which he paid for himself. Mr Y’s condition declined, which meant he could not return home. Mrs Y contacted the Council for help funding his care as he had very little left in savings to fund his care. The care home cost £1,224 a week. The Council told Mrs Y it would provide emergency funding for her husband’s placement for two weeks from 21 February, while it assessed his needs and did a financial assessment.
6. On 26 February the Council sent Mr Y an agreement for the payment of care home fees. Mrs Y signed the document on behalf of her husband as she had power of attorney for his property and financial affairs. The document says:
• “In signing this agreement, you are ageing that if the Council places you in a care home accommodation, you will make the following payments towards the care home fees which the Council assesses you have to pay:”
1. “an interim amount based on the information provided on the appropriate Request for Financial Information form until such time as the Council has undertaken a full financial assessment to determine what you need to pay”
2. “the exact amount determined on conclusion of the financial assessment or, if applicable, at the end of the 12 week property disregard period, whichever is later.”

The document says anyone with capital over £23,250 will have to pay the full cost of their care. Mr X says his mother does not recall signing this document but accepts that she did.

7. On 12 March the Council sent Mrs Y its provisional financial assessment “pending information for second property”. Based on his income, this said Mr Y would have to pay £418.80 a week. The Council asked for more information about the second property, jointly owned by Mr & Mrs Y, and a mortgage taken out on their main home (which they had used to buy the second property).
8. The Council completed its financial assessment on 19 March. It decided Mr Y could fund his own care as he had capital over £23,250 because of his half share of the second property jointly owned with his wife, which had been valued at £115,000. The Council said Mrs Y could appeal the assessment in writing within the next 28 days. The letter was sent in the name of the Financial Assessments Team Leader.
9. Mrs Y sent a letter to the Council on 23 March about the financial assessment. Mr X e-mailed the Council on 24 March appealing its decision. He said:
• it had failed to take account of the fact the purpose of selling the second property was to repay the interest only mortgage on his parents’ main home, so it should disregard the capital as “capital earmarked for specific items or purposes at the time of the financial assessment”;
• his mother had accepted an offer of £98,000 on the second property;
• the sale could not be completed because of COVID-19.
10. Mr Y referred to the Care Act and the need to:
• provide information and advice on meeting or reducing needs under section 24(2); and
• prepare an independent personal budget under section 24(3).
11. Mr X says they were considering moving his father from the care home if the Council stopped funding his placement.
12. Mr X chased a response to the appeal on 1 April.
13. On 4 April the Council emailed Mrs Y. It said it hoped her husband’s rapid assessment for NHS Continuing Healthcare would be successful. It said the care home was doing all it could to get Mr Y discharged but noted the opportunity for this to happen would be limited. It said it had told the care home it would fund Mr Y’s placement for two weeks from 21 February. But from 6 March he would be privately funded, in line with its financial assessment. It said it may be possible to source a live-in carer, rather than a domiciliary care package, at short notice, if Mr Y returned home.
14. Mr Y died on 8 April.
15. On 14 April the Financial Assessments Team Manager e-mailed Mr X and his mother. Having familiarised herself with Mr Y’s case, she said:
• the Council had done a financial assessment as Mr Y had eligible care needs;
• it found he had enough capital to pay for his own care because of his share of the second property;
• its charging and financial assessment policy was available on its website and it had followed the Care Act 214, Annex B: treatment of capital;
• at £44,000, Mr Y’s share of the second property was still over the upper capital limit of £23,250;
• given the difficulties in selling the second property because of COVID-19, the Council would continue to fund Mr Y’s placement at the care home on a “without prejudice” basis until lockdown ended;
• it would review the funding decision each quarter and would complete a financial assessment to determine Mr Y’s contribution from his income.
16. Mr X replied the same day saying:
• his father had died;
• they continued to dispute the charges from 6 March (he assumed there would be no charge before that);
• he had found no information about the Council’s appeals process, its position on deferred payment agreements or independent personal budgets;
• no consideration had been given to the fact that the sale of the second property would only be available to cover an interest only mortgage, so it should not be considered an asset;
• the Council should consider backdating the NHS Continuing Healthcare funding to cover the disputed weeks;
• they had not been able to complete the sale of the second property because of COVID-19.
17. On 20 May the Council sent Mrs Y an invoice for £8,393.14 for “services to 18/04/2020” to be paid from Mr Y’s estate within 14 days.
18. On 26 May Mr X asked the Council to confirm the invoice had been sent in error. He also noted it:
• included charges for 10 days after his father had died;
• identified no start date;
• was not clear if the charges took account of the NHS Funded Nursing Care paid directly to the care home;
• had not taken account of the retrospective award of NHS Continuing Healthcare.
19. Mr X exchanged further e-mails with the Council and spoke to officers over the telephone. He also wrote to a Councillor. But he was unable to resolve his concerns. He made a formal complaint in June. He complained:
• no one had told them who would pay for his father’s care during the appeal of the financial assessment;
• as he received no response to the appeal he chased on 1 April;
• the Council told his mother its funding ended on 6 March;
• the 14 April response to his appeal had been inadequate, as the Council was ignoring some of its responsibilities under the Care Act 2014;
• the demand for payment included no breakdown;
• he had received no response to his e-mail of 26 May or subsequent phone calls.
20. The Council agreed to provide a comprehensive response to Mr X’s concerns. In internal e-mails it acknowledged it had not done this before. It told Mr X it hoped to respond to his complaint before 15 July. However, it also warned him it could take longer than this. The Council sent its response to Mr X on 21 July. It:
• accepted the term “emergency funding” was unhelpful, as it did not mean there would be no charge;
• referred to the information it had given Mrs Y about charges, including the document she signed in February (see paragraph 6 above);
• confirmed it had charged £1,224 a week from 21 February to 8 April;
• said it had agreed on 14 April that the charge did not have to be paid until the second property was sold;
• said it continued to send invoices to meet legal requirements;
• noted an application for NHS Continuing Healthcare had been made but it was not aware of a decision;
• said the financial assessment review process was addressed via the Council’s complaints procedure for adult social care and should be concluded within 20 working days; it apologised for the delay;
• noted the strategy was to repay the interest only mortgage of £100,000 on Mr & Mrs Y’s home following the sale of the second property, but there was no specific agreement to do so. It was just one strategy available to Mrs Y;
• noted the sale price of £98,000 would still leave Mr Y with significantly more than £23,250 in capital;
• agreed to apologise to Mrs Y for any distress it had caused her.
21. Mr X is no longer disputing the outcome of the financial assessment; that his father had capital over £23,250 and could therefore afford to pay for his own care. However, he says the Council should not have charged for the first two weeks and remains unhappy about the handling of the appeal and complaint.

Is there evidence of fault by the Council which caused injustice?

22. The Council stepped in at a time of urgent need to fund Mr Y’s care home placement, initially for two weeks. It did this so it could assess his needs under the Care Act. After identifying eligible care needs, the Council completed a financial assessment in two stages. It did this within four weeks. It also responded to Mr X’s appeal in three weeks. None of this suggests any delay by the Council over the way it dealt with the funding for Mr Y’s placement. There was a delay of six days in responding to Mr X’s complaint and the Council has apologised for this. There is no need for it to do more than that.
23. There was a misunderstanding about what it meant when the Council said it would provide emergency funding for Mr Y’s placement. His family assumed there would be no charge for this. However, Mrs Y had signed a document confirming she understood there would be a charge and that anyone with more than £23,250 would have to pay for their own care. It is not unusual for misunderstandings to arise in what is inevitably a difficult time for families. But I cannot put this down to fault by the Council in this case.
24. Mr Y was not eligible for a mandatory deferred payment agreement under the Care and Support (Deferred Payment) Regulations 2014. The Council could have considered offering Mr Y a discretionary deferred payment agreement, given that his capital was tied up in a property with no immediate prospect of selling it. However, Mr Y died. The Council then settled the care home bill and agreed to wait for the sale of the second property for payment.
25. There was no need for the Council to provide Mr Y with an independent personal budget as Section 24(3) of the Care Act 2014 is not in force.

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Final decision

26. I have completed my investigation as there is no evidence of fault causing injustice requiring a remedy.

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Investigator's decision on behalf of the Ombudsman