Summary: Mr X complained that the Council did not advise Mr Y of its funding responsibilities when it assessed Mrs Z. He also complained about its delay dealing with his complaint and refunding Mr Y. He says this caused Mr Y severe stress and serious health difficulties. We found the Council was at fault and did not comply with the Care Act 2014 when it did not assess Mrs Z’s finances. It was also at fault in the delay putting this right. This caused Mr Y significant stress and he paid £64,000 unnecessarily, which was only returned after almost three years. The Council has agreed to pay Mr Y interest on the £64,000 and £1,000 for the stress and lost opportunity it caused. It will also pay Mr X £300 for the stress, time and trouble it caused him.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained on behalf of Mr Y, about the Council’s actions when Mrs Z’s funds fell below the charging threshold. Mrs Z is Mr Y’s mother and Mr X’s grandmother.
2. Mr X says the Council:
• failed to advise Mr Y of its funding responsibilities and the charging thresholds leaving Mr Y to pay over £60,000 for Mrs Z’s care from his own funds.
• took six months to investigate his complaint and did not respond within the stated 25 working days.
• took three months to refund Mr Y having already considered his complaint.
• did not give him the agreed amount.
3. Mr X says this caused Mr Y severe stress and serious health difficulties due to the stress of chasing the Council. Mr Y remained over £20,000 out of pocket and the Council did not formally apologise. Mr Y would like an apology and compensation.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
7. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended). We consider Mr X is a suitable person to bring the complaint on Mr Y’s and Mrs Z’s behalf.

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How I considered this complaint

8. I considered information from the Complainant and from the Council.
9. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

The Care Act 2014

10. In 2015, the Government introduced the Care Act. This legislation replaced all previous guidance about how councils assess and provide care for adults in need. It includes guidance on charging for care.
11. Sections 9 and 10 of the Care Act 2014 say councils must assess the needs of an adult who appears to need care and support. The council must do this regardless of whether it thinks the person has eligible needs and regardless of the person's finances. Following an assessment, the Council must decide which needs are eligible for their support. If the Council provides support, it must produce a written care plan.
12. Councils must assess a person’s finances to decide what contribution they should make to a personal budget for care. There are differences in how income is treated in a care home and in other settings, such as receiving care at home.
13. 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.
14. 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 between £14,250 and £23,250, they are expected to pay £1 for every £250, or part thereof, between the two figures towards their placement. This is called ‘tariff income’. So, 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. If a person’s assets are valued at less than £14,250, they will not have to contribute from those assets.
15. Section 8.9 of the guidance says ‘where a person lacks capacity, they may still be assessed as being able to contribute towards the cost of their care. However, a local authority must put in place policies regarding how they communicate, how they carry out financial assessments and how they collect any debts that take into consideration the capacity of the person as well as any illness or condition. Local authorities are expected to use their social work skills both to communicate with people and also, to design a system that works with, and for, very vulnerable people’.
16. The guidance says a local authority “may choose to treat a person as if a financial assessment had been carried out. In this case, 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”. It suggests ways a local authority might be satisfied the person can afford any charges. This includes property where the person’s share is clearly worth more than the upper capital limit. Also, savings clearly worth more than the upper capital limit or sufficient income left following the charge due. If the person does not agree to the charges they are assessed as being able to pay using this “light touch” assessment, a full financial assessment may be needed.

The Personal Expenses Allowance (PEA)

17. People in a care home will contribute most of their income, excluding their earnings, towards the cost of their care and support. However, the council must leave the person with a specified amount of their own income so the person has money to spend on personal items that are not part of their care. This allowance is the personal expenses allowance (PEA). The PEA must not be used to cover any aspect of their care and support that is assessed as necessary to meet the person’s eligible needs. The current level of PEA is £24.90 per week. Councils have discretion to apply a higher income allowance in individual cases.
18. Neither councils, nor care providers have the authority to require residents to spend their PEA in particular ways and, as such, should not do so.

Recovering a debt

19. A council may use its powers under the Care Act to recover a debt. But in deciding how to proceed it should consider the circumstances of the case before deciding whether it was a deliberate avoidance of paying or due to circumstances beyond the person’s control. The Council can ultimately issue County Court proceedings to recover the debt. But should only use this power once all other reasonable alternatives have been exhausted.

Complaints

20. Councils should have clear procedures for dealing with social care complaints. Regulations and guidance say they should investigate a complaint in a way which will resolve it speedily and efficiently. A single stage procedure should be enough. The Council should say in its response to the complaint:

• how it has considered the complaint; and
• what conclusions it has reached about the complaint, including any matters which may need remedial action; and
• whether the responsible body is satisfied it has taken or will take necessary action; and
• details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.

(Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

21. Regulations do not say how long a complaint investigation should take but expect this will be determined at the start of the procedure, usually in discussion with the complainant. If the complainant does not want to discuss, the responsible body must decide the timescales itself and confirm them to the complainant in writing. During the investigation, the body must keep the complainant informed of progress ‘as far as reasonably practicable’. If the responsible body has not provided a response after six months (or, after any previously agreed longer period), it must write to the complainant to explain why.  (Regs 13 and 14, Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

Our guidance on remedies

22. Our guidance says “we will not normally consider including interest in the remedy unless the period of delay was more than six months, and the payment itself is more than £1,000. We usually base the calculation of interest on the average retail price index for the period”.
23. It also says “We expect bodies in jurisdiction to treat people fairly and with respect, not to expose the public to unnecessary distress, harm or risk as a result of their actions or inactions. Such injustice cannot generally be remedied by a payment, so we usually seek a symbolic amount to acknowledge the impact of fault on the complainant. The amount depends on the circumstances of the case”. This includes the severity of the distress, the length of time, number of people affected, whether the person is affected by distress more severely, and any professional opinion about the effects on the individual. “A remedy payment for distress is often a moderate sum of between £100 and £300. In cases where the distress was severe or prolonged, up to £1,000 may be justified. Exceptionally, we may recommend more than this.”.

What happened

24. In 2015, Mrs Z moved to a care home. Mr Y, her son and attorney, arranged this and paid £773 per week from Mrs Z’s own funds.
25. On 13 December 2017, Mr X contacted the Council because the Care Provider said it could not meet Mrs Z’s needs and he thought the placement would break down. Mr Y and Mr X were unhappy that she might need to move again when it had taken her a long time to settle there. Prior to Mr X’s contact, the Council was not aware of Mrs Z’s care needs or that she was in a care home. A social worker visited to assess Mrs Z’s needs and the mental health team also visited. The social worker found the Care Provider could meet Mrs Z’s needs and it agreed she could stay. The social worker asked about Mrs Z’s funding and Mr X said she was self funding. The social worker did not explore this further and did not propose a financial assessment. If they had done so, Mr Y would have provided the required information about Mrs Z’s finances or signed to waive her right to an assessment and therefore funding.
26. In October 2019, Mr X again contacted the Council because the Care Provider was threatening Mrs Z with eviction. He said she owed the Care Provider £18,000 and asked the Council to help. The Council completed a financial assessment and found she was eligible for funding. It sent Mr Y a detailed explanation about charging. The leaflet “Charging for residential care 2019-20” said:
• “We will also need to carry out a financial assessment to work out what you need to pay towards the cost of your care”.
• “If you make contact after your capital drops below the limit, we will not put your capital back up to the limit”.
• “Once your capital drops below the capital limit, you will still need to make a contribution towards your care”.
• “When completing a financial assessment, we will make sure you are left with the statutory Personal Expenses Allowance which is £24.90 per week”.
• “If your capital is valued at more than £14,250, but less than £23,250, the national charging rules allow the council to include £1 per week for every £250 of savings you have above £14,250 when it works out the weekly contribution you will have to pay towards the cost of your care. This is called tariff income”.
• “When the financial assessment has been completed, we will tell you in writing how we worked out your charge and you will be advised on what you can do if you think the charge is wrong”.
• “We will invoice you every four weeks”.
27. The leaflet gives examples and sets out how the contribution is calculated. It also explains “what to do if you think your charge is wrong”.
28. Mr X said Mrs Z’s finances had dropped below the threshold of £23,250 in 2016 and the Council should backdate funding until then. He said no one had told them that she would be eligible for funding once this happened. In January 2020, the Council said it would only agree funding to October 2019, when Mr X had asked for funding support. Mr Y complained about this. On 20 January, the Council advised Mr Y about Mrs Z’s assessed contribution and how this was calculated. It sent a further letter about this in May and another copy of the charging leaflet.
29. At the end of May, the Council responded to Mr Y’s complaint. It apologised for the delay in responding to the “unusual” issues, and said it agreed to retrospectively fund Mrs Z’s placement from 13 December 2017. It said “the funding will be applied at Local Authority rates and will be subject to a further financial assessment”. Also, “The funding will be less the assessed contributions payable”. Mr Y replied to the Council “Thank you for your fair response” and asked when it would confirm the precise amount of the refund. The Council advised it could not give a precise figure until an assessment was completed and hoped to do this “within the next few weeks”. It asked where Mr Y would like the financial assessment form sent. It explained that Mrs Z’s “CC” (client contribution) would be deducted from the weekly figure that the Council would pay back. It explained that both the CC and the fees would have been different in previous years, so the calculation was not straightforward. It asked for Mr Y’s permission to contact the Care Provider to ask it to transfer the debt to the Council and it would then pay the Care Provider. It also asked for his thoughts on this plan. Mr Y acknowledged this email and said the financial assessment form should be sent to his email address.
30. The Council says it had daily conversations with Mr Y about the refund amount and explaining about the client contribution but could not satisfy his concerns.
31. In July, the Council sent Mr Y a further letter setting out Mrs Z’s contribution and details of the calculations.
32. In August, the Care Provider paid Mr Y £64,791.13 which was the total amount Mr Y had paid. The Council paid the Care Provider the agreed rate for Mrs Z’s placement from 13 December 2017. Mr Y had been increasingly out of pocket for almost three years.
33. In October, Mr X brought his complaint to us as he believed Mr Y was over £20,000 out of pocket though he was not clear why he thought this. However, we referred it back to the Council as, although it had responded, it said it had not completed its complaints process and given a final response. Mr X says the Council presented the £64,791.13 as a settlement, rather than a refund. This meant he, and Mr Y, were shocked to find Mrs Y still had to pay £21,000. Mr Y felt this was effectively a decrease in the settlement the Council had agreed. They feel the Council did not make it clear this was a separate issue and it should have done so.
34. The Council gave Mr X a final response to his complaint at the beginning of December 2020. This was over eleven months after his original complaint and reiterated the Council’s apologies. Mr Y and Mr X remained unhappy with the outcome so complained to us again.

Was there fault which caused injustice?

35. The Council was at fault in not considering Mrs Z’s finances in January 2018, when it assessed her needs following Mr X’s contact on 13 December 2017. The social worker should have completed at least a light touch financial assessment to comply with the Care Act 2014, but did not. This caused Mr Y undue significant stress, frustration, outrage, and financial injustice over a significant period at a difficult time in his life when his health was poor. He was therefore entitled to a refund of all the fees he had paid for Mrs Z from 13 December 2017. The Care Provider confirmed it gave Mr Y a refund of all the fees he paid from 13 December 2017 and I am satisfied that Mr Y received this. Although the £64,791.13 has now been refunded, he lost the opportunity to use this significant sum as he might have wished.
36. There is no evidence Mr Y was out of pocket by over £20,000 due to these events. Mr X was not clear about this perceived shortfall. I have decided it is likely to refer to the client contribution that was owing and charged following the refund of money to Mr Y. However, this was not due from Mr Y, as Mr X and Mr Y understood, it was due from Mrs Z. Mr Y was refunded the full amount that he paid and therefore I do not agree he is out of pocket other than by interest due on the sum refunded. I will recommend the Council pays him interest. It is also possible the £20,000 shortfall refers to the difference between the amount due for the period from December 2017, and what Mr Y actually paid. Either way, Mr Y was refunded everything he paid and should not since have paid anything for Mrs Z’s placement.
37. I have considered whether the Council should have paid the funds direct to Mr Y and then sought reimbursement from the Care Provider. I have concluded the Council was right to secure Mrs Z’s placement by ensuring the debt was paid direct to the Care Provider. It was funding her care for this period and had a responsibility to do this. The Care Provider agreed to accept the amount the Council was prepared to pay for Mrs Z’s placement and refunded Mr Y the full amount he had paid. However, Mr Y and Mr X had to involve the Care Provider’s Chief Executive to obtain the refund and this caused further significant stress, time and trouble. This was a difficult situation as the Care Provider was not under any obligation to the Council until it took over the funding. The Council agreed this with the Care Provider and should have secured the refund rather than leave it to Mr Y.
38. The Council was entitled to charge Mrs Z her assessed client contribution (CC). I am satisfied the Council gave Mr Y and Mr X clear information about the client contribution, which was due from Mrs Z’s remaining funds, not from Mr Y’s. It first provided this in October 2019, and provided several further explanations, both written and in discussion. I found no fault here. If Mr Y believes Mrs Z does not have enough funds to pay the CC, he should contact the Council and ask for another financial assessment. If Mr Y continues to pay Mrs Z’s CC from his own funds, he risks Mrs Z’s CC being set higher than it might otherwise be.
39. The Council was at fault in the delay dealing with the complaint. It took eleven months to provide a final response to Mr X’s complaint which was excessive. This added to the stress for Mr Y and caused Mr X undue significant stress and frustration. The response in May 2020 addressed all the issues relating to the original complaint. However, it then took nearly three months for the financial assessment, funding change and refund to be completed and a further four months to give a final response. This was a complaint which involved a significant sum, and I am not surprised the Council took advice and considered this at length. Even so, it could have concluded this much quicker once it had decided that it needed to backdate funding.
40. Fortunately, I found no injustice to Mrs Z since Mr Y ensured her care was paid for and Mr X approached the Council when Mr Y could no longer pay.

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Agreed action

41. To remedy the injustice identified above, I recommended the Council:
• Apologise to Mr Y and Mr X in writing, setting out the faults identified above and the actions taken, and to be taken, to avoid a similar problem in future.
• Pay Mr Y compound interest on the amount he paid to the Care Provider from 13 December 2017 to 14 August 2020. This should be calculated using the average retail price index covering the period concerned.
• Pay Mr Y £1,000 to recognise the stress, frustration, lost opportunity, outrage, time, and trouble caused by the Council’s failure to financially assess Mrs Z in January 2018.
• Pay Mr X £300 for the stress, time and trouble caused.
• Review procedures and training to ensure finances are always appropriately considered as part of an assessment.
• Consider the causes for the delays in this case and ensure any learning points are actioned.
• Complete these actions within two months of the final decision and submit evidence of this to us. Suitable evidence would include a copy of the letter, confirmation of payments and an action plan showing progress on the remaining recommendations.

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Final decision

42. I have completed my investigation and uphold Mr Y’s complaint that the Council:
• failed to advise Mr Y of its funding responsibilities and the charging thresholds leaving Mr Y to pay over £60,000 for Mrs Z’s care from his own funds.
• took six months to investigate his complaint and did not respond within the stated 25 working days.
• having considered his complaint, took three months to refund Mr Y.
43. I do not uphold Mr X’s complaint that the Council did not give Mr Y the agreed amount.

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Investigator's decision on behalf of the Ombudsman