Summary: Mr C complained about the way through which the Council carried out his aunt’s financial assessment for her permanent residential care. While we did not find fault with the financial assessment process itself, we found the Council was at fault for the way in which it responded to Mr C’s questions about it. As such, the Council has agreed to apologise to Mr C and pay a financial remedy for any distress he experienced.

The complaint

1. The complainant, whom I shall call Mr C, complained on behalf of his (late) aunt, whom I shall call Ms A. He complained about the way in wich the Council carried out the financial assessment of his aunt’s permanent care home placement. He says this, and the way it subsequently tried to arrange payment of her care home fees, was not in line with government guidance in place at the time.
2. Mr C says the Council also took an unreasonable time to deal with the family’s queries, request for a review and complaint. As a result, it took a very long time to resolve this, which resulted in distress and the Council claiming the family should pay an additional £8,000 in interest payments.

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The Ombudsman’s role and powers

3. 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)
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 considered the information I received from Mr C and the Council and carried out an interview with two Council officers. I shared a copy of my draft decision statement with Mr C and the Council and considered any comments I received, before I made my final decision.

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What I found

Relevant legislation and guidance

6. The complaint deals with the way the Council charged Ms A in 2012/13. The guidance in place which the Council had to adhere to at the time was called the “Charging for Residential Accommodation Guide (CRAG). CRAG (2013) says that:
• 7.024 When the [financial] assessment has been completed and it has been determined that the person has insufficient income and capital (that is, below the upper capital limit) excluding their property, to meet their care home fees deferred payments may be offered.
• 7.025 Councils should bear in mind that deferred payments under section 55 of the Health and Social Care Act 2001 are distinct from the pursuit of debt through section 22 of HASSASSA 1983. Deferred payments should be offered when individuals are willing to pay their assessed contribution but do not wish to do so immediately. Section 22 of HASSASSA applies to situations where residents are unwilling to pay their assessed contribution, either now or in the future, and a debt arises.
• Annex D 3A HASSASSA requires interest to be charged from the day after the resident's death.

What happened

7. In 2012, Ms A suffered a stroke and spent a long time in hospital. Records in relation to Ms A’s capacity state that, at a multidisciplinary meeting on 31 August 2012, doctors felt that Ms A lacked capacity to make a decision.
8. However, later on, the records state that
• On 23 October 2012: “Ms A is happy for her sister to find a suitable home for her. Ms A is alert and she is well aware of what is going on (…). Informed Ms A that she would have to sign a contract regards her stay for the home and explained that she will need to contribute towards her care”. The social worker said that Finance would speak with her to explain, with her sister Mrs C present.
• On 1 November 2012, the social worker went through the contract with Ms A and her sister-in-law. The record says Ms A was happy to sign after the social worker explained again there was a charge, which Ms A understood.
• A care review dated 13 December 2012 states: “Ms A has (some short-term memory problems” but “is able to voice her opinion (…). At the present time is able to make decisions with support and help”. It also says that Ms A: “has always seen to her own finances. SW has discussed Lasting Power of Attorney with her and given written information on this. However, declined to consider the benefits of this. Has capacity to make these decisions at this time. May require some assistance with the management of her financial affairs”.
9. As such, the Council says the social worker did not have concerns about Ms A’s capacity to understand and make these decisions, at the specific moment these decisions had to be made.
10. An officer visited Ms A on 5 November 2012 to carry out the financial assessment. The Council says that Mr and Mrs C were both present, but Mr C told me he cannot remember being present. The Council says that, as Ms A could not confirm her capital levels, it was agreed Mrs C would approach the bank for information. At the time Ms A had more than £23,250 in savings and therefore had to pay the full cost of her care.
11. Mrs C told the Council in September 2013 that Ms A’s savings had reduced to almost £23,250. This meant the Council had to carry out a financial reassessment. Mrs C had a “third-party mandate” with the bank, because Ms A was unable to physically get to the bank. However, Mr C says this did not make her officially / legally entitled to make financial decisions, or agree financial arrangements, on behalf of Ms A.
12. The Council visited Ms A in October 2013 to do a financial reassessment; Mrs C was present. The record of the visit says: “Explained deferred charges”. Deferred charges to commence from 16 December 2013. The Council told me that Mrs C signed the financial assessment form at Ms A’s request as Ms A did not have the physical capacity to sign the form, but she understood what was happening. The Council says: Mrs C told the assessor she had a third-party mandate at the bank for Ms A and she provided the financial information for Ms A with her full knowledge.
13. The Council sent two letters letter to Ms A on 20 November 2013.
• The first letter (residential assessed charge letter) said that Ms A would have to pay a contribution of around £129 from 23 September 2013 onwards. The letter also asked her to sign an attached letter.
• The second letter (residential property letter) said that:
1. Ms A had been assessed as having to pay the full cost of her care from 16 December 2012 (£468). It explained that, as the capital was in her property, she did not have access to the capital to pay this fee. As such, the Council would pay the difference (£339 a week) between her assessed contribution of £129 and the full cost of the placement (£468).
2. It explained the Council may enter into a deferred payment agreement, and it has powers (under section 22), and intended, to put a charge on her property. This would mean the Council would recover the £339 a week, after Ms A’s property is sold in the future.
3. If a person passes away, the debt will have to be paid within 56 days, after which the Council would charge interest.
4. It asked her to sign and return the letter to acknowledge she had received and understood the letter.
14. The residential property letter addressed to Ms A asked her to sign and return a copy of the letter to confirm she received and understood it. It was not to confirm she agreed with it. The Council told me the residential assessment form was not signed and returned.
15. The Council says that the next step in the process was to put a charge against the person’s property. As such, it approached the Land Registry, who completed a search for Ms A’s property in November 2013. However, the property was not registered at all at this time. As such, it did not place a charge against the property but a charge against her name at the Land Registry on 25 November 2013.
16. Mr C confirmed he knew in 2013 that his aunt would have to pay for the cost of her care, which would be paid by Ms A / her family upon the sale of her property.
17. The Council says:
• It imposed a deferred charge from 16 December 2013. The Council told Ms A her house would be taken into account and she said it did not matter.
• The Financial Assessment form confirms Ms A declared she solely owned the property.
• If Ms A had not agreed to the deferred payment, and therefore the charge against her property / name, she would have had to pay the full cost of the care home fees every week, which she was unable to do.

Analysis

18. The Council explained Deferred Payments to Ms A and Mrs C at the time, who did not raise any objections or concerns at the time. All concerned accepted that the fees the Council was paying for Ms A’s care, would have to be paid back once her property is sold.
19. When the Land Registry said Ms A’s property was not registered, the Council placed a charge against Ms A’s name at the Land Registry.
20. I did not find fault with regards to the process the Council followed.

The way the Council dealt with the recovery of the debt:

21. Ms A passed away in November 2015. The Council subsequently informed the family in December 2015 that the outstanding amount to be paid was £36,253. The letter also said the Council would start to charge interest after 57 days. The Council failed to provide a breakdown to show the family how this amount was calculated.
22. Four days later, Ms A’s family said they would have to go through a Probate process and cannot put the house up for sale until this is sorted. The Council said it would put a hold on the invoices and asked the family to keep the Council updated. The probate was granted on 19 February 2016, but I did not see evidence the family updated the Council of this at the time.
23. The Council reviewed the case in June 2016. It found out the probate was resolved, and it would therefore start to send payment reminders.
24. Mr C sent an email to the Council in July 2016. In it, he asked the copy for a copy of the agreement the Council had with Ms A, full breakdown of charges, and the basis of the interest charged. Mr C said that, once it had received this, it would consider the Council’s payment request. In response, the Council out a pause on sending out further payment reminders.
• On 30 August 2016, the Council provided an explanation by email of what happened and why.
• On 27 September 2016, Mr C chased a response to the remaining issues.
• The Council provided this on 14 October 2016. It also said that: ”The charge was placed against Ms A’s property to secure the accruing debt due to non- compliance of the return of the property letter/deferred agreement”.
25. The explanation given on 14 October 2016 was not accurate, as a charge was not placed “due to non-compliance”. It would have been placed even if the letter had been signed and returned. Furthermore, technically speaking, it did not put a “charge against the property” but “a charge against her name”.
26. In response, Mr C sent an email to the Council in November 2016, in which he said the property was not owned by Ms A and the Council acted ultra vires in placing a charge against it. He asked the Council to remove the charge and re-calculate any fees accordingly. Mr C says:
• The council did not respond to this, leading the family to believe they were reviewing things.
• Furthermore, their solicitor told them there was no charge on the property, which re-enforced the family’s view.
27. The Council has told me, and provided evidence to show, there was a charge with the Land Registry.
28. The family sold the property in March 2017 for £80,000+.
29. In 2019, the Council recruited a debt management officer. The officer reviewed cases where the Council was owned money and referred Mr C’s case to its solicitors to pursue.
30. The solicitors contacted Mr C in October 2019. In response, Mr C asked the Council to review how Ms A’s case was dealt with. He said:
• Ms A was unable to understand the deferred cost scheme and the Council coerced Mrs C into signing a form on Ms A’s behalf. Mrs C was not a legal deputy or had power of attorney.
• The financial assessment was done some time after Ms A went into the home and cannot be properly applied retrospectively.
• The interest rates are far beyond levels allowed in the care act.
31. The Council responded in December 2019 by saying that:
• When the Council first assessed Ms A, she had capacity to make financial decisions, and Mrs C supported her to go to the bank.
• Ms A agreed in November 2012 that Mr and Mrs C could ask the bank for financial information.
• The Council took the property into account when her capital dropped below £23,250.
• All decisions were made correctly and it followed and applied interest rates in accordance to CRAG, not the Care Act.
32. Mr C subsequently asked the Council on 14 December 2019 for evidence and to explain what the next stage would be in the complaints process. However, the family did not receive any further correspondence until it received another letter from the Council’s solicitors in September 2020.
33. Mr C continued to challenge various aspects with the Council and referred his complaint to the Ombudsman at the same time.
34. The Council says that:
• The family had full knowledge of the debt to the Council from 14 December 2015. It has done its best to answer any questions and requests from Mr C.
• It is happy to discuss settlement of the debt and is willing to consider reviewing the level of interest currently asked for, if Mr C accepts a repayment agreement.

Analysis

35. Mr C asked for information and clarifications in 2016 with regards to the agreement that had been signed and the process the Council had followed. It took the Council four months to provide a comprehensive response to this, which was an unreasonable amount of time. This is fault.
36. Mr C sent an email to the Council in November 2016, in which he said the property was not owned by Ms A and the Council acted ultra vires in placing a charge against it. He asked the Council to remove the charge and re-calculate any fees accordingly. I found the Council failed to respond to this, which is fault. Mr C did not chase a response.
37. The Council also failed to carry out any further actions with regards to recovering the outstanding debt until October 2019.
38. Mr C asked the Council in December 2019 how he could progress his complaint, to which the Council failed to respond, which is fault. It took until September 2020 before the family received another letter from the Council’s solicitors.

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Agreed action

39. I recommended that, within four weeks of my decision, the Council should:
• Apologise to Mr C for the faults identified above and the distress this has caused him and pay him £200.
• Review, considering the above faults and any delays caused by the Council, to what extent it should charge interest on top of the outstanding amount of Ms A’s care charges.
40. The Council has told me it has accepted my recommendations.

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Final decision

41. For reasons explained above, I found there was fault with the way in which the Council pursued the outstanding debt and responded to Mr C’s questions. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case.

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Investigator's decision on behalf of the Ombudsman