The Ombudsman's final decision:
Summary: Mr X complained that the Council failed to treat savings in his wife’s sole bank account as a joint asset when calculating her contribution towards the cost of her residential care. We find the Council was not at fault in treating the savings as belonging solely to Mrs X.
- Mr X complains that the Council failed to treat savings in his wife’s sole bank account as joint assets when calculating her contribution towards the cost of her residential care. He says he has lost a significant amount of money because of the Council’s decision and has had to seek medical help for depression.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I have considered all the information provided by Mr X and the Council. I have also considered The Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance 2014.
- Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Legal and administrative background
- 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.
- The rules state that people who have over the upper capital limit (currently £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.
- 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.
- In some circumstances, a local authority may choose to treat a person as if a financial assessment had been carried out. In order to do so, the local authority must be satisfied on the basis of evidence provided by the person that they can afford, and will continue to be able to afford, any charges due. This is known as a ‘light-touch’ financial assessment.
- Paragraph 8.8 of 2014 statutory guidance says “The local authority has no power to assess couples or civil partners according to their joint resources. Each person must therefore be treated individually”.
- Paragraph 8.9 of the guidance says that, where a person lacks capacity to make decisions, they may still be assessed as being able to contribute towards the cost of their care. Where possible, local authorities should work with someone who has the legal authority to make financial decisions on behalf of a person who lacks capacity. If there is no such person, the local authority must approach the court of protection which may appoint a deputy to make decisions for the person.
- Mr X was the main carer for his wife. During a visit by a social worker in July 2019, it was suggested that Mrs X had a period of residential respite because Mr X was suffering from carer’s breakdown. The Council says Mr X told the social worker Mrs X had significant savings above the capital threshold of £23,250 and the social worker explained she would need to pay the full cost of her care. Mr X was given a charging letter which he signed on Mrs X’s behalf.
- A financial assessment officer contacted Mr X to complete a financial assessment and calculate Mrs X’s financial contribution towards the costs of her care. Mr X confirmed that Mrs X had £72,000 in savings so the officer completed a full cost desktop assessment rather than a full financial assessment. The Council wrote to Mr X on 29 July 2019 confirming that Mrs X was required to pay the full amount of her care home fees.
- Mrs X returned home for a time but was then admitted to hospital. A best interests meeting was held in November 2019 because she did not have capacity to make her own decision about her care and accommodation. At the meeting it was decided that Mrs X should move to a permanent residential placement and that an application should be made to the court of protection for deputyship for finance to be granted to an independent solicitor.
- Mrs X’s placement at a residential home began in January 2020 and the Council completed a full cost desktop assessment. It sent a letter to Mr X confirming Mrs X was required to pay the full costs of her care but that it would fund the placement until the deputyship had been awarded and then reclaim the amount it had paid on Mrs X’s behalf.
- In May 2020 Mr X complained that the Council was treating all the capital in Mrs X’s account as solely belonging to her whereas, in fact, this was joint savings and included the proceeds of sale of the matrimonial home.
- In July 2020 the Council instructed solicitors to make an application to the court of protection to consider whether Mrs X lacked mental capacity to make decisions about her property and financial affairs and appoint a panel deputy to make decisions on her behalf.
- In October 2020 the Council responded to Mr X’s complaint. It explained that, under the charging regulations, when one member of a couple is in residential care they must be assessed as an individual. So, although Mr and Mrs X were husband and wife, this did not automatically allow savings in Mrs X’s sole name to be treated jointly.
- Mr X complained to the Ombudsman.
- Councils can choose to conduct ‘light-touch’ financial assessments in certain circumstances, including when a person has significant financial resources. The Council was satisfied Mrs X had savings above the upper capital limit and so decided not to conduct a more in-depth assessment. I am satisfied the Council acted without fault in making this decision.
- As the money in Mrs X’s bank account was in her sole name, I cannot criticise the Council for treating this money as belonging solely to her. When making that decision, the Council considered the statutory guidance which states that it has no power to assess couples according to their joint resources and each person must be treated individually.
- It is open to Mr X to seek legal advice about making a claim once a deputy has been appointed to deal with Mrs X’s finances.
- There was a significant delay in the Council responding to Mr X’s complaint. It took over five months to do so. However, as I have not upheld the substantive complaint, I will not pursue this issue further.
- I do not uphold Mr X’s complaint.
- I have completed my investigation on the basis I am satisfied with the Council’s actions.
Investigator's decision on behalf of the Ombudsman