Summary: Mr B complained the Council did not explain or provide sufficient information about his mother’s contribution towards her care home fees. We find fault with the Council as it did not provide clear information to Mr B for him to know he had to pay a care contribution. Mr B has suffered an injustice of uncertainty and has been put to the time and trouble of complaining. The Council agrees to apologise and pay Mr B the sum of £350 for uncertainty and putting him to the time and trouble of complaining.

The complaint

1. Mr B complained that the Council did not clearly explain that his mother, Mrs C, would be responsible for paying a contribution towards the cost of her residential care home place. He says he had not been made aware of the client contribution until the Council issued an invoice in November 2019, some five months after Mrs C was placed in the care home.
2. Mr B says the Council should waive the client contribution for Mrs C.
3. Mr B represents his mother, Mrs C in making this complaint.

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The Ombudsman’s role and powers

4. 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)
5. We may investigate a complaint on behalf of someone who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

6. 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

7. I have spoken to Mr B by telephone and considered the correspondence in support of his complaint.
8. I have made enquiries with the Council and considered the responses provided.
9. I have sent a draft to Mr B and the Council and have considered the comments before making a final decision.

Law and Guidance

10. The charging rules for residential care are set out in:

• The Care Act 2014.
• Care and Support (Charging and Assessment of Resources) Regulations 2014.
• Care and Support Statutory Guidance 2014.

11. 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 cost of their residential care.
12. The Care Act 2014 provides a single legal framework for charging for care and support under sections 14 and 17. It enables a local authority to decide whether or not to charge a person when it is arranging to meet a person’s care and support needs or a carer’s support needs.
13. 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.
14. 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.
15. 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.
16. The framework is therefore based on the following principles that local authorities should take into account when making decisions on charging. The section of principles are that the approach to charging for care and support needs should:

• ensure that people are not charged more than it is reasonably practicable for them to pay
• be comprehensive, to reduce variation in the way people are assessed and charged
• be clear and transparent, so people know what they will be charged

17. Where a local authority has decided to charge, except where a light touch assessment is permissible, it must carry out a financial assessment of what the person can afford to pay and, once complete, it must give a written record of that assessment to the person. This could be provided alongside a person’s care and support plan or separately, including via online means. It should explain how the assessment has been carried out, what the charge will be and how often it will be made, and if there is any fluctuation in charges, the reason. The local authority should ensure that this is provided in a manner that the person can easily understand, in line with its duties on providing information and advice.

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What I found

18. Mrs C suffers with dementia and was admitted to hospital in June 2019. Upon her discharge later that month she moved from supported living into a residential care home where her needs could be met. Mrs C was self-funding at this time and the residential home was selected by Mr B.
19. Mr B, her son, holds power of attorney for both finance and welfare for Mrs C. He contacted the Council by email in mid-July 2019. He informed the Council that he felt Mrs C would need long term residential care. Mr B said as his mother was self-funding he was concerned about her funds depleting and asked if the Council could help with the cost of her care.
20. The Council replied and said a staff member would be in touch within 28 days. Mrs C’s social worker telephoned Mr B and discussed his mother’s needs and an appointment for a face to face meeting was scheduled for early August 2019.
21. The social worker met with Mr B and Mrs C at the residential home in early August 2019. At this point Mrs C had been at the home for approximately six weeks. The Council noted that she was self-funding. It acknowledged that the cost of the care home was more than the local authority rate the Council would usually expect to pay for a residential care home placement and said the difference should be paid by a top up.
22. Later in August 2019, the Council carried out a financial assessment to determine how much Mrs C and Mr B needed to contribute towards her care home place. The Council say that at this meeting an officer verbally discussed third party top-up fees and contributions with Mr B. It has provided a note from the officer to say it was explained that Mrs C would have to pay “as much as they could afford to pay towards the banded rate of service.”
23. Mr B says that it was at this meeting the Council told him that it would take care of the costs of Mrs C’s care.
24. The financial assessment form says the information given is needed to ‘assess the contribution”. The declaration also says that that “we agree to pay the assessed contribution.” Further sections in the declaration say there is a liability for payment in accordance with the Care Act 2014. It goes onto say that the signer acknowledges and understands the extent to which they are eligible to be charged for care and services received. The financial assessment form was completed and signed by the Council and Mr B.
25. In early September, the Council sent Mr B a copy of the Adult Social Care Directory by email. This document contains sections explaining financial arrangements for care and explains that care is means tested and explains the thresholds for capital limits and payment of fees. The document also covers third party top-ups and contributions. The Council says that it pointed Mr B to ‘useful information’ in the directory that it recommended he should be read.
26. At the same time the Council’s notes also say that the social worker had a conversation with Mr B and asked about the progress of the financial assessment. It says it verbally explained that Mrs C would have to make a contribution to her care as well as discussing that she could not be responsible for paying her own top-up.
27. Mr B signed a Third Party Financial Contract in October 2019. This form explained the signer must ensure that they are able to afford the agreed contribution and made it clear this would be the responsibility of Mr B to pay. The contract explained the Council would pay the residential care home every four weeks and said this includes the top up amount. Mr B signed to agree to pay £389 per week from mid July 2019. The contract said, “these payments are to meet a proportion of the full cost of accommodation which is higher than the amount the Council is prepared to pay for this category of care.”
28. In November 2019, the Council sent Mr B an invoice addressed to Mrs C for her care contributions. The invoice detailed the cost was for 13 weeks of two days care between July 2019 and October 2019.
29. Mr B complained to the Council in February 2020 to dispute the invoice. He said he was uncertain why it had sent him two invoices for similar dates. Mr B explained he had not been made aware that his mother would have to pay a contribution towards her care. He said that this had come as a shock and was unaffordable. He said during the meeting with the Council in August 2019 he had been told the Council ‘would take care of payments’ from July 2019. He told the Council he based his decision on the written figures contained in the third-party contract. He said if he had been aware that Mrs C would have to make contributions alongside his own top-up fees the decision regarding residential care would have been different.
30. The Council did not uphold Mr B’s complaint. It said its records show the Council had a conversation with Mr B about the need for Mrs C to make contributions. It also said it had emailed a copy of the Adult Social Care Directory which contained information about financial assessments and paying for care. The Council said it was Mr B who had placed Mrs C into the care home, only informing the Council of this when her placement had started. It said it would have informed Mr B about third party top ups earlier and would have sought a more affordable option if it had been involved with Mrs C’s care from the start.
31. Mr B was unhappy with the reply and said that the communication from the Council had been poor, even though he said he had been in touch with it every week. He said that he expected something as complicated and as important as care home contributions to have been put in writing. He asked the Council to reconsider his complaint.
32. The Council did look again at Mr B’s complaint but it did not uphold it. It commented that although it accepted that Mr B did not know the exact contribution, it was satisfied that he was aware charges would be raised.
33. Mr B complained to the Ombudsman in September 2020.

Analysis

34. Mrs C’s residential care placement started in late June 2019. As she was self-funding, Mr B did not make the Council aware of the placement until mid-July 2019. In placing Mrs C in residential care Mr B took the risk that they may not be eligible for assistance, or if they were, there may have been a contribution to pay towards the costs following a financial assessment.
35. The Council is not at fault for requesting Mrs C pay a contribution for her residential care costs. The law says even if a person has less than £14,250 they are still required to contribute some of their income to pay for their care home placement.
36. A financial assessment was completed and signed by Mr B in August 2019. The Council has provided me with evidence to say that verbal discussions were held at the time the financial assessment was completed about third party top ups and care contributions.
37. The guidance says that once the financial assessment was completed the Council must give a written record of that assessment to the person and explain what the charge should be and how often it should be made. The Council did not do this. This was fault and caused Mr B avoidable uncertainty and confusion. The Council, in its reply to Mr B’s complaint, also accepted he would not have known the exact amount he was to be charged.
38. The Council’s records also show Mrs C’s social worker spoke with Mr B in September 2019 and explained that following the financial assessment Mrs C would be responsible for paying a contribution toward her care costs separate from the top up fees being charged. Mrs C’s social worker also sent Mr B The Adult Social Care Directory at around the same time. This referred generally to contributions towards care costs, so I am satisfied the Council did alert Mr B that Mrs C would have to pay a care contribution following her financial assessment.
39. The Council failed to follow up the conversation in September between Mrs C’s social worker and Mr B with a letter setting out the expectation that Mrs C’s would have to make a contribution, and from when she would be expected to pay. This was fault and a further missed opportunity for the Council to prevent the uncertainty caused by not explaining the outcome of the financial assessment. This led to further avoidable confusion for Mr B who did not realise the significance of the contribution until he received an invoice in November 2019.
40. Where we find fault that has caused injustice we aim to put the person back in the place they would have been but for the fault. Our Guidance on Remedies suggests that where this is not possible, we will recommend the Council makes a symbolic payment in recognition of the uncertainty caused and the avoidable time and inconvenience to which Mr B have been put.
41. In this case, Mr B would always have had to pay a contribution on behalf of Mrs C even if the Council had informed him in writing. The Council also had no involvement with the choice and cost of the residential care for Mrs C. Mr B made this decision without informing the Council first, as he was entitled to do.

Agreed action

42. To address the injustice caused the Council has agreed by 24 May 2021 to:
1. Apologise to Mr B for the uncertainty caused and being put to the time and trouble of complaining.
2. Pay Mr B the sum of £350 in recognition of its failure to provide sufficiently clear information about care home charges and for time, trouble and uncertainty.
3. Share the final decision with staff to ensure in future clear written information is given to clients about care home charges.

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Final decision

43. We find fault with the Council as it did not provide sufficiently clear written information that Mrs C needed to pay client contributions. This has caused an injustice to Mr B. The Council has agreed to remedy this so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman