Summary: There was no fault in the social worker informing Mr X that his mother would be required to contribute towards her care. Mr X says this caused the family distress. Given that Mr X’s mother had a property worth more than the upper capital limit a light touch financial assessment was reasonable, until Mr X’s sister moved into the property and the family disputed the decision.

The complaint

1. The complainant, who I shall refer to as Mr X, complains that a Council officer made a statement that was inappropriate and explicitly prohibited by law in an email and on the telephone. Mr X accuses the social worker of misconduct in public office contrary to common law. Mr X also complains the Council’s complaints procedure was inadequate.
2. Mr X says the statement caused distress to his sister and him, and that he wants to ensure that this does not happen to anyone else.

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What I have investigated

3. I have investigated Mr X’s complaint about the statement made by the social worker. The final section of this statement contains my reason(s) for not investigating the rest of the complaint.

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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. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

7. I read the papers put in by Mr X and discussed the complaint with him.
8. I considered the documents provided by the Council.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The complaint and key facts

10. Mr X and his family were in contact with a social worker to arrange for his mother (Mrs Y) to go into a residential care home on her discharge from hospital.
11. Mr X complains about the social worker, who said in an email ‘finance team will let you know how much will be depends on financial assessment. Mrs Y will need to pay contributions towards care for 12 weeks depends on her income and savings and Mrs Y will be considered as self funder from 12 weeks as she owns the property’.
12. Mr X complains that ‘a financial assessment must be carried prior to any decision about funding. The financial assessment had not been carried out and the social workers statements were inappropriate and explicitly prohibited by law. The social worker is accused of misconduct in public office contrary to common law’.
13. Mr X complains the Council’s response to his complaint did not specifically answer the issues he raised, although the Council did respond to his complaint.

The law

14. 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.
15. The rules state that people who have over the upper capital limit (of £23,250) should 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 includes property in the assessment, but the Council can disregard it for several reasons.
16. 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.
17. Section 8.22 of the Care Act 2014 says that 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 a ‘light-touch’ financial assessment.

My Analysis and finding

18. The Council has not yet reached a decision on the financial contribution that Mrs Y should pay over a year later. Mr X says that his sister moved into Mrs Y’s property on 31 December, the same day as the social worker sent the email. He believes the Council should disregard the property because of this.
19. The Ombudsman cannot decide points of law, such as whether the social worker is guilty of misconduct. This is a legal matter for the courts to decide, so Mr X will need to get his own legal advice if he wishes to pursue this part of his complaint.
20. Mr X complains the social workers statement was inappropriate, as he gave the opinion that Mrs Y would need to sell her house to fund her care before the Council completed the financial assessment.
21. The Care Act 2014 allows the Council to carry out a light touch financial assessment, this is not fault. Section 8.25 goes on to say that where the Council is going to meet the person’s needs, and it proposes to undertake a light-touch financial assessment, it should take steps to assure itself the person concerned is willing, and will continue to be willing, to pay all charges due. It must also remember that it is responsible for ensuring that people are not charged more than it is reasonable for them to pay. Where a person does not agree to the charges that they have been assessed as being able to afford to pay under this route, the Council may need to do a full financial assessment.
22. Mrs Y was the owner of a property worth more than the upper financial limit. So, I cannot say it was fault for the social worker to start with a light touch financial assessment, i.e. from the information the social worker had his opinion was that Mrs Y would be responsible for self funding her care. As it then became clear that the family disagreed with the decision, due to Mr X’s sister moving into the property, the Council then correctly moved to carrying out a full financial assessment. So, while I understand Mr X and his family felt stress from the situation, I am not convinced that this was because of any fault in the social workers actions.

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Final decision

23. I have completed my investigation of this complaint. This complaint is not upheld as I have found no evidence of fault.

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Parts of the complaint I did not investigate

24. I have not investigated Mr X's complaint about the inadequate response from the Councils complaint procedure. It is not a good use of public resources to investigate complaints about complaint procedures, if we do not deal with the substantive issue. In this case, I have found no fault in the Council’s response on the substantive complaint and Mr X did receive a response to his official complaint, though not the response he wanted.

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Investigator's decision on behalf of the Ombudsman