Summary: Mr X complained about how the Council decided when his late father, Mr F’s, capital dropped below the capital limit threshold and that it failed to reimburse Mr F’s estate for overpaid care fees. The Council was at fault. It gave Mr X conflicting and confusing information about how it calculated the date Mr F’s capital dropped below the threshold due to errors in its spreadsheet tool. It then delayed arranging reimbursement of overpaid care fees by six months. The Council agreed to provide evidence it has reimbursed Mr F’s estate and pay Mr X £150 to recognise the frustration and time and trouble caused by the delay.

The complaint

1. Mr X complained how the Council calculated and decided when his late father, Mr F’s, capital dropped below the £23,250 threshold and ceased being a self-funding care home resident. Mr X said the Council gave incorrect dates which resulted in his father paying care fees during March 2020 at the self-funding rate when the Council should have contributed.
2. Mr X said the Council’s handling of the matter caused him uncertainty and time and trouble and says his father’s estate is due a refund for overpayment of care fess paid during March 2020.

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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. 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)

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How I considered this complaint

6. I spoke to Mr X about his complaint and considered information he provided.
7. I considered the Council’s response to my enquiry letter.
8. Mr X and the Council had the opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

The Care Act 2014 and charging

9. In 2014, 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.
10. The Care Act states councils have discretion to charge people for the care they receive. If a council decides to charge for care, it must complete a financial assessment of what the person can afford to pay and must give a written record of that assessment to the person, or their representative.

Assessment of an individual’s charges – Capital limits

11. Persons who have over £23,250 of eligible capital will be expected to pay for the full cost of their care home fees. However, once their capital has reduced to less than £23,250, they only have to pay an assessed contribution towards their fees.
12. The capital limits, specified in regulations issued under the Care Act 2014, set the levels of capital (excluding any capital that has been disregarded) that a person can have while qualifying for financial support from their local authority. For people receiving care other than as a permanent resident in a care home, local authorities have discretion to set higher capital limits if they wish.
13. A person with assets between the capital limits will pay what they can afford from their income, plus a means-tested contribution from their assets (calculated as £1 per week for every £250 of capital between the capital limits). A person with assets below the lower capital limit will pay only what they can afford from their income.

What happened

14. Mr F was a self-funding resident in a care home and Mr X, his son, managed his financial affairs. In February 2020 Mr X contacted the Council and informed it that Mr F’s capital was nearing the £23,250 threshold and therefore asked it to carry out a financial assessment for Mr F.
15. Mr F continued living at the care home as a self-funding resident until he died at the end of March 2020. Records show Mr F’s care fees for March 2020 were paid via direct debt at the start of April 2020 at the self-funding rate of £3299.
16. In April 2020 the Council told Mr X that following the financial assessment and a calculation using a spreadsheet tool of Mr F’s funds it had estimated that his capital would drop below the £23,250 threshold on 19 April 2020. Therefore, it said Mr F was not eligible for financial support before he died. Mr X contacted the Council and questioned the date as Mr F’s capital had dropped below the threshold at the start of March 2020.
17. The Council carried out a re-calculation following Mr X’s concerns and this time estimated Mr F’s capital would drop below the threshold on 6 April 2020. The Council said it had used some incorrect dates in the first calculation.
18. Mr X wrote to the Council. He said the Council’s calculations were incorrect and was unhappy it had given different dates. Mr X said the Council’s explanation of how it had arrived at the dates were confusing and unclear. Mr X said that based on the inconsistent calculations and information the Council had provided he wished to appeal the decision.
19. The Council considered Mr X’s appeal in July 2020 and wrote to him shortly after. The panel decided that based on the information it had available which included Mr F’s financial history and bank statements that the Council should assist with Mr F’s care from 2 March 2020 as that is the date his capital first dropped below the £23,250 threshold. The Council said it would pay its contribution direct to the care home. It said Mr X would then need to contact the care home around any overpayment.
20. Mr X was unhappy with the Council’s decision. He asked for a full explanation of the methodology used to calculate Mr F’s capital drop. Mr X asked when the Council would provide a refund for the fees Mr F paid at the self-funding rate for March 2020.
21. The Council wrote to Mr X in October 2020 following its further consideration of the matter. The Council said it was unable to provide an explanation of why it had arrived at different dates for Mr F’s capital drop for which it apologised. It said however that the capital drop date is a projection of when someone’s funds drop below the threshold and therefore the second date of 6 April was not unreasonable. It confirmed once again that the panel had agreed on the date of 2 March 2020 as when Mr F’s capital dropped below the threshold. The Council provided Mr X with calculations from Mr F’s financial assessment. This confirmed that it would contribute £196,31 per week towards Mr F’s care fees for March 2020. This meant Mr F’s contribution was £284,69 per week plus a £50 top-up fee. The Council said Mr X should contact the care home about any refund in fees.
22. Mr X submitted a further appeal which the Council considered in November 2020. Following this it wrote to Mr X with its final response. An officer independent of the previous appeal carried out a review. Records show the officer used the same tools previously used to calculate Mr F’s capital drop and came out with a date of 6 January 2020. The officer found however that the spreadsheet tools had errors in them which gave miscalculations throughout. Following this they concluded 2 March 2020 as agreed by the previous appeal panel was the correct date to use. The Council apologised for the inaccuracy of its calculations.
23. Mr X remained unhappy and complained to us in December 2020. Mr X said he still had not received any reimbursement for the overpaid care fees and was unhappy with the Council’s handling of the matter.

The Council’s response to my enquiry letter

24. The Council explained to us that there was an error in the ‘tools’ it used to calculate Mr F’s capital drop which caused the inconsistent dates given to Mr X. It said it has now rectified this and has issued a revised tool to all staff.
25. The Council said it acknowledged Mr F had overpaid care fees for March 2020 as he ceased being a self-funding resident on 2 March 2020. The Council said it had asked the care home to reimburse Mr F’s estate £1832,49 which was the amount the Council should have contributed during March 2020 until Mr F died.

My findings

26. Calculating exactly when someone’s capital drops below the threshold so they are eligible for contributions from the council is not an exact science. When someone’s capital reaches the threshold, it is likely the amount will fluctuate just above or just below the limit for a period of time depending on their income and outgoings. In Mr F’s case the Council used spreadsheet projection tools to estimate a date when his capital would fall below the threshold. In Mr F’s case this was done retrospectively as he died shortly after Mr X requested the financial assessment.
27. However, due to errors in the spreadsheet tool the Council gave Mr X conflicting dates and confusing explanations of how it arrived at those dates. That was fault. It caused Mr X uncertainty and time and trouble appealing the matter. The Council has already apologised for this.
28. When Mr X appealed the Council used its discretion and agreed on the date of 2 March 2020 which was when Mr F’s capital first dropped below the threshold. This seems appropriate in the circumstances and further investigation into this aspect of the complaint would unlikely achieve anything further or lead me to arrive at a different conclusion.
29. The Council agreed in July 2020 that it would retrospectively contribute to Mr F’s care from 2 March 2020 onwards. It also agreed Mr F had overpaid care fees following the payment of £3299 at the end of March 2020 after he died. It was the Council’s responsibility to arrange the refund of overpaid care fees because in effect, it became responsible for Mr F’s care from 2 March 2020 onwards. Following its final response, the Council did not contact the care home about the refund until May 2021 which was a delay of 6 months and is fault. This caused Mr X further frustration and the time and trouble complaining to us.

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Agreed action

30. Within one month of the final decision the Council agreed to:
• provide us with evidence that it has reimbursed Mr F’s estate £1832,49 in overpaid care fees from March 2020.
• apologise to Mr X and pay him a symbolic payment of £150 to recognise the frustration and time and trouble caused by the delay in arranging the reimbursement of Mr F’s overpaid care fees.

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Final decision

31. I completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman