The Ombudsman's final decision:
Summary: Mr X complained the Council has incorrectly charged his mother, Mrs M, for the full amount of her residential care. The Council was at fault when it delayed sending Mr X the financial assessment forms to complete and delayed in transferring Mrs M’s Care Home fees from the NHS to itself once her Continuing Health Care award ceased. It has already apologised to Mr X, which is sufficient to remedy any injustice he experienced, and taken appropriate steps to prevent the fault occurring again. There was no fault in the way the Council decided to class Mrs M as a self-funder and seek to recover her outstanding Care Home fees from Mr X, who has power of attorney for her.
- Mr X complained the Council:
- failed to communicate with him properly between 2018-20. Specifically, it:
- notified him that his mother, Mrs M’s, Continuing Health Care (CHC) had been stopped by the NHS before the NHS assessment had taken place;
- failed to respond to the financial assessment referral he submitted;
- failed to notify him of the mounting residential care home debt;
- did not carry out the financial assessments properly;
- deliberately allowed the debt to build up;
- is unfairly demanding payment of the outstanding debt; and
- failed to respond to a subject access request.
What I have investigated
- I have investigated complaints 1 a) to 1 d). I explain why I have not investigated complaint 1 e) at the end of this decision statement.
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)
- 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)
- 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 spoke to Mr X and considered his view of his complaint.
- I considered information provided by the Council. This included the letters and other correspondence it sent Mr X relating to the financial assessment and complaints correspondence.
- I considered the relevant legislation. This included the Care Act 2014 (the Act), the Care and Support (Charging and Assessment of Resources) Regulations 2014 (the Regulations) and the Care and Support Statutory Guidance 2014 (The Guidance).
- I wrote to Mr X and the Council with my draft decision and considered their comments before I make my final decision.
What I found
Paying for care
- The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge.
- Where adults receive care and support from local authorities, they normally do so under the provisions of the Care Act 2014 and may have to pay for them, depending on financial eligibility criteria.
- Where a council has decided to charge it must carry out a financial assessment of what the person can afford to pay. (Care and Support Statutory Guidance, section 8.16)
- In assessing what a person can afford to contribute a local authority must apply the upper and lower capital limits. A person with assets above the upper capital limit will be deemed to be able to afford the full cost of their care.
- If someone does not wish to undergo a full financial assessment, the council can charge for the full cost of the care.
Deprivation of assets
- Deprivation of assets applies when someone’s assets, such as money, property or income, are reduced so these won’t be included when the council calculates how much the person needs to pay towards the care they receive.
- If the council thinks that someone has deliberately reduced their assets to avoid care fees, they may still include the value of the assets the person no longer has when they do the means test.
- The Council’s charging policy states “If the Council feels that a person may have disposed of or transferred their home… in order to pay a reduced contribution, the Council may apply a notional amount equivalent to the value of the asset or capital to be included in the financial assessment”.
Continuing Health Care
- Continuing Health Care (CHC) is a package of care for people who have significant and ongoing health needs. It is arranged and funded by the NHS and it covers the cost of any support from health professionals as well as any help required with personal care. Therefore, if a person receives CHC, they will generally not have to pay for any of their care.
- Decisions about who is eligible for CHC are made by the local Clinical Commissioning Group (CCG). CCGs are part of the NHS.
- In 2012, Mr X was granted deputyship for his mother, Mrs M, who lacks capacity and had lived in a residential home since 2010. Mrs M’s sister, Mrs S is her next of kin.
- Mrs M previously received Continuing Health Care (CHC) funding. On 13 September 2018, the NHS assessed her again and decided she was no longer eligible for CHC funding. Mrs S was not present at the assessment but took part by telephone. Mr X says a Council social worker contacted him on 24 September and told him the Mrs M’s funding was going to stop.
- In September 2018, the Council agreed to take on the payment of Mrs M’s fees from the NHS, whilst a financial assessment was completed. However, the Council failed to progress this which led to a non-payment of fees.
- In October 2018, Mr X completed a financial assessment referral form which he sent to the Council. This stated Mrs M had savings which were below the upper threshold and, therefore, she could not contribute to the full costs of her care. Mr X ticked the box on the form which stated he had been informed about the Council’s charging policy.
- On 4 December 2018, the NHS wrote to Mrs S and said Mrs M’s CHC funding would stop 14 days from the date of the letter. The letter advised Mrs S to contact the Council to discuss whether Mrs M was entitled to any financial support towards the costs of her care.
- On 11 July 2019, Mrs M’s social worker at the Council made a referral to the Council’s finance team. The financial team sent Mr X a financial assessment form on the same day. Around this time, the Council became aware it had failed to progress its decision to transfer Mrs M’s account to itself. This had led to a accumulation of unpaid care home fees, which the Council settled with the Care Home.
- On 31 July 2019, an internal Council email stated the Care Home had been told Mrs M had a property which appeared to have been sold in 2013. The finance team checked this with the Council Tax department and found this to be correct.
- On 13 August 2019, the Council sent Mr X a letter advising the full costs of Mrs M’s care were owing because he had not returned the financial assessment form.
- The Council sent a further letter on 17 September 2019 requesting bank statements, mortgage details and a completed financial assessment form.
- Mr X’s solicitors emailed the Council on 16 June 2020 to ask for proof it had sent Mr X the financial assessment forms. The Council sent the solicitors copies of the letters it had sent Mr X which showed they had been sent to his address.
- The solicitors emailed the Council again on 30 July 2020 asking the Council which assets it had taken into account when determining Mrs M should pay the full costs of her care.
- Around that time, the Council emailed Mr X again and asked him to provide the financial documents it required and to complete the financial assessment. It said:
“First of all, we never received the financial assessment form sent out to you on 11/07/2019. The form was resent in September 2019. As we were unable to carry out an accurate financial assessment, it was our duty to charge full cost for the service.
Subsequently, it came to our attention that your mother sold her property... for the amount of £225,000. Our team needs to understand what happened to the proceeds from the property sale. Therefore, we request you provide us with the full bank statements of all the accounts held by [Mrs M] from October 2013 till January 2019. In particular, we need to see the full statement of the account the proceeds were paid into in 2013”.
- Mr X complained to the Council and said he had not received the financial assessment forms. The Council responded and apologised for not progressing the financial assessment sooner. It said it had reminded the relevant staff of the importance of timely action. The Council also apologised for not arranging the transfer of Mrs M’s account from the NHS to itself earlier but said it had paid those fees in full. The Council said that the financial assessment would determine whether those fees should be repaid by the family to the Council.
- Mr X remained unhappy and complained to the Ombudsman.
- Mr X complained the Council informed him Mrs M’s CHC funding was going to stop before the NHS assessed her.
- On 13 September 2018, the NHS assessed Mrs M to decide if she was still eligible for CHC funding. It concluded she was not, and a Council social worker informed him of this 11 days later. The NHS subsequently sent a letter confirming this to Mrs S. There was no fault in the Council’s actions.
- Mr X completed a financial assessment referral form in October 2018. He ticked the box on the form to say he had been informed about the Council’s charging policy. The Council did not action this for nine months. This delay was fault.
- However, Mr X said he had been informed of the Council’s charging policy. This provided details of how and when the Council would charge for residential care. It contained details about when the Council may take the sale of a property into account. Therefore, Mr X was aware that his mother may have to pay for the costs of her care and any contribution may take the value of her property into account. The Council has already apologised and this is sufficient to remedy any injustice Mr X experienced. It has also taken steps to prevent a similar occurrence in future. Mrs M has continued to receive the care she requires. Therefore, she has not experienced any injustice.
- In 2019, the Council corresponded with Mr X on three occasions in relation to the outstanding financial assessment forms. It also informed him that because it had not received the information it had requested, Mrs M was currently liable for the full cost of her care. These letters went to the correct address for Mr X. Therefore, there was no fault in the Council’s actions.
- The Council failed to progress the transfer of Mrs M’s account from the NHS to itself. This led to unpaid fees and is fault. However, Mrs M and Mr X did not experience a significant injustice because the Council settled the bill.
- Mr X has still not provided the information the Council has requested. As a result, the debt has increased. The Council is entitled to ask for financial information from Mr X before it makes a decision about what Mrs M can afford to contribute towards the costs of her care. Until Mr X provides the information, the Council can continue to charge the full amount to Mrs M. It is also entitled to take action to recoup the fees it has paid on behalf of Mrs M. If Mr X decides to provide the information required, this will allow the Council to determine Mrs M’s previous and future contributions. If Mr X is unhappy with the Council’s calculations he can complain again to the Council and then return to the Ombudsman. If Mr X does not provide this information the Council is not at fault for continuing to charge the full costs of the care.
- I have completed my investigation. The Council was at fault when it delayed in carrying out Mrs M’s financial assessment and did not transfer Mrs M’s account from the NHS once her Continuing Health Care stopped. It has already apologised to Mr X, which is sufficient to remedy any injustice, and made service improvements. The Council was not at fault over the other matters I have investigated.
Parts of the complaint that I did not investigate
- I have not investigated Mr X’s complaint that the Council failed to respond to a subject access request. This is because the Information Commissioner’s Officer is better placed to look at this complaint.
Investigator's decision on behalf of the Ombudsman