Summary: Ms B complained on behalf of her father Mr X. She said the Council told her and the rest of the family there would be no charge when Mr X went into a nursing home. It was only after 15 months they received notification there was a charge. Ms B also complained about how the Council then responded to their complaints and questions. Ms B said they were put to time and trouble in having to pursue it with the Council. Also, the delay adversely affected Mr X’s wife’s financial position and the benefits she could claim. There was fault by the Council that caused injustice.

The complaint

1. I will call the person representing the complainant Ms B. She complained on behalf of her father Mr X. She said the Council told her and the rest of the family there would be no charge when Mr X went into a nursing home. It was only after 15 months they received notification there was a charge. Ms B also complained about how the Council then responded to their complaints and questions. Ms B said they were put to time and trouble in having to pursue it with the Council. Also, the delay adversely affected Mr X’s wife’s financial position and the benefits she could claim.

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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 considered the complaint and documents provided by Ms B and spoke to her I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Ms B and the Council and considered their comments.

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What I found

Summary of the relevant law, guidance and good practice

5. 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 the 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 residential care.
6. The rules state that people who have over the upper capital limit of £23,250 are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
7. The council 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.
8. Most people will have to pay something towards the cost of a care home even if they have capital of less than the lower capital limit of £14,250. Usually a person is expected to pay all of their regular income towards their placement after deducting an amount for their personal spending which is known as their personal expenses allowance.
9. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan. The plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the local authority must involve any carer the adult has. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
10. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)
11. The guidance says a personal budget should specify the amount the service user will have to pay towards the cost of the care, based on the financial assessment.

What happened

12. Mr X had a couple of spells in hospital in 2018 before moving to the nursing home where he still lives in July 2018. Ms B and other family members met and spoke with officers of the Council about the arrangements for his care. Ms B says they understood there would be no charge as it would all be covered by the Council and the NHS.
13. At the end of September the Council sent Ms B’s husband a copy of the contract document and the leaflet ‘Paying to live in a care home’. At the end of October Ms B signed the contract.
14. The next significant event was at the beginning of November the following year, 2019. The Council sent an invoice to Mr X, care of his wife, for over £8000. With the invoice was a letter dated a day earlier which gave some figures of contributions that needed to be made to the care provider.
15. Ms B questioned this with the Council and in January of 2020 raised a formal complaint. Ms B was not satisfied with the responses from the Council and complained to us.

Analysis

Information given at the start of the placement

16. When Mr X went into care Ms B said they were told there would be no charge. Ms B received the leaflet about care charges sent at the end of September 2018. This explains the vast majority of cases the resident will have to pay towards their care. It explains about the personal allowance they are allowed to keep. I consider this provided an adequate explanation of charging.
17. Ms B and her husband said they had the leaflet but said they relied on the comments from officers that there would be no charge. I consider what is likely to have happened here is the comments made by officers was reference to whether there would need to be a contribution from the family on top of the charge. A file note refers specifically to this being explained but going on to say that Mr X would need to be assessed for his contribution. I cannot say there was fault in what the officers said. The problem is because there was then a substantial delay in the Council carrying out the financial assessment of Mr B the family did not know the correct position.
18. There is no question there was delay in issuing the invoice. The Council said this was due to resource issues and changes in financial systems. Regardless of the reasons, the delay of over a year is fault.
19. Where there was fault we have to consider what the consequence has been for the complainant. Here the family should have known when Mr X went into the home what that meant financially for him. They did not. But I cannot say it would have altered the position. There was no question Mr X would need to go into residential care. And once that had happened he was liable for the charges. The Council will make a small payment to the family to recognise the distress the delay caused them but I cannot say they should not have to pay the charges due.
20. Another factor here was that the family said that because of the delay in carrying out the financial assessment Mrs X was not able to apply for pension credits in her own right. Had she known Mr X’s income would need to go towards his care charges then she could have made an application then.
21. The facts here were that Mrs X was included in her husband’s pension credit claim and that remained the position when he went into residential care. Mrs X did later apply and was awarded pension credit. However the claim was not backdated to cover the period when Mr X was first in care.
22. If the Council had carried out the financial assessment of Mr X promptly Mrs X would have known she needed to make a claim in her own right. However, I also have to consider that there was a responsibility on Mrs X and the family to tell the Department of Work and Pensions that Mr X’s circumstances had changed. Had they done so then the necessary changes to Mr and Mrs X’s entitlement could have been calculated. It is not, therefore, right to look to the Council to provide any remedy for the loss of the pension credit.

Breakdown of the sum due

23. Ms B and the family wanted to understand exactly how the amount of contribution was calculated and how the sum now due was calculated. That was not clearly provided in the correspondence with Ms B but the Council has now done so in response to my enquiries. It would have been better if it had been provided before but I do not consider it to be a significant point.

Complaint handling

24. Ms B complained in January 2020. The Council’s first response was sent at the end of March. This accepted there had been delay and apologised. Ms B went back to the Council towards the end of May and the Council replied two months later. Ms B was not satisfied and wrote to the Council again in August. The Council overlooked that correspondence and did not reply until April 2021.
25. There was delay by the Council in responding to Ms B’s correspondence. Also there was some conflict in the information given by the Council about contact with the DWP by Council officers and information from the DWP itself. I cannot resolve that difference but it has no direct bearing on my consideration of this complaint so I am not going to pursue the point further.

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Agreed action

26. The Council will:
• pay Ms B £500 in recognition of the injustice caused to her and the family as a result of the fault found;
• provide information to say what it has done to address the causes of the delay in carrying out the financial assessment.
27. It will complete the first point within one month of the final decision and the second within two months.

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Final decision

28. There was fault that caused injustice.

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Investigator's decision on behalf of the Ombudsman