Wakefield City Council (20 009 400)

Category : Adult care services > Charging

Decision : Not upheld

Decision date : 26 Jul 2021

The Ombudsman's final decision:

Summary: Mrs X complained the Council failed to provide her with clear information about how to access Council support to pay her mother’s care home fees, whilst she awaited court-appointed deputyship enabling her to access her mother’s finances. The Council was not at fault.

The complaint

  1. Mrs X complained the Council failed to provide her with clear information about how to access Council support to pay her mother’s care home fees, whilst she awaited court-appointed deputyship enabling her to access her mother’s finances. She said poor communication and errors meant she had to cover the cost of her mother’s care fees from her savings which caused her distress and financial loss. She wants the Council to admit it was unclear in the information provided to her and review its procedures to ensure it provides clear information to others in similar circumstances.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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

  1. I read Mrs X’s complaint and spoke with her about it on the phone.
  2. I made enquiries of the Council and considered the information it sent me.
  3. Mrs X and the Council had the opportunity to comment on the draft decision. I considered their comments before making a final decision.

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What I found

Background information

Charging for care

  1. The rules related to charging 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.
  2. The financial limit, known as the “upper capital limit” exists for the purpose of the financial assessment. This sets out at what point a person is entitled to access council support to meet their eligible needs. When a person has financial assets above the upper capital limit (currently £23,250), they are assessed as being self-funding and are required to pay all their care costs.
  3. A person with more in capital than the upper capital limit can ask their local authority to arrange their care and support for them. Where the person’s needs are to be met by care in a care home, the local authority may choose to meet those needs and arrange the care but is not required to do so.
  4. Where a person arranges and pays for their own care, the contract is directly between the person (or their representative) and the care home. The Council is not involved unless directly approached for support.

Mental capacity and court-appointed deputyship

  1. Where a person lacks capacity to make decisions for themselves and there is no Lasting Power of Attorney in place, the Court of Protection may appoint a deputy to make decisions for a person. It will also say what decisions the deputy has the authority to make on the person’s behalf.

The Joint Framework Agreement

  1. Wakefield City Council has a Joint Framework Agreement in place between itself and registered care homes in its area. The Joint Framework Agreement says:
    • where there is any default in the resident’s contribution being paid to the service provider, the service provider shall take all reasonable steps to recover the resident’s contribution from the resident and/or third party;
    • should any resident’s contribution remain outstanding after 28 days, the service provider must notify the Council’s payment team;
    • the service provider shall retain records of steps taken to recover the resident’s contribution, which shall be made available to the Council on request; and
    • subject to the above conditions being met, the Council will make payment to the service provider in respect of any outstanding resident’s contribution.

What happened

  1. Mrs X’s mother, Mrs Y, has health conditions and lacks capacity to make her own decisions. In September 2019, Mrs X arranged for Mrs Y to move into a care home for a period of respite care. Mrs X arranged this directly with the care home and paid the care fees to them.
  2. By December 2019, Mrs Y was still living in the care home and was settled there. Mrs Y had an allocated social worker at this time, who reviewed her needs. They agreed she needed long term residential care and the care home was suitable for her. Mrs X told the Council she had already contracted directly with the care home as Mrs Y had savings above the upper capital limit and was the sole owner of a property.
  3. In February 2020, the social worker referred Mrs X to the Council’s finance team. The finance team contacted her in March. Mrs X told the Council she currently could not sell Mrs Y’s property or access Mrs Y’s savings as she did not have Lasting Power of Attorney or a court-appointed deputyship. She said she had appointed a solicitor who was completing an application to the courts for deputyship, but, in the meantime, she was paying Mrs Y’s care fees out of her own savings. Mrs X asked the Council for assistance to pay the care fees until she was appointed as Mrs Y’s deputy and could access her accounts.
  4. The Council asked Mrs X to provide information about Mrs Y’s finances so it could consider the request. It also said it would ask the Department of Work and Pensions to make her Mrs Y’s appointee, so she could access Mrs Y’s state pension and benefits.
  5. Mrs X provided the Council with financial information.
  6. In April 2020, the Council spoke to Mrs X. It said it could not provide financial assistance as Mrs Y had savings over the upper capital limit and owned a property. It told Mrs X that she first needed to approach the care home and try to reach an agreement with them. It said if she was unable to continue paying the fees and defaulted on payments, the care home should then approach the Council for support. In these circumstances the Council would consider paying the care fees to prevent a breakdown of the placement.
  7. Mrs X continued to pay Mrs Y’s care fees.
  8. In June 2020, the care home contacted the Council. It asked the Council to put Mrs Y’s care account “on hold”.
  9. The Council replied and told the care home that it had assessed Mrs Y’s finances and she had savings above the upper capital limit, so the Council could not offer support. It said that if the care home wanted to request Council support, it needed to follow the default procedure. It said to do this, it needed to send the Council a statement of Mrs Y’s account and any evidence the care home had tried to chase up the accrued debt. It told the care home where to send this information and offered to discuss the process with the care home, if needed.
  10. The care home did not contact the Council to clarify the procedure, follow the default procedure or request Council support.
  11. In August 2020, Mrs X contacted the Council asking when it was going to start paying Mrs Y’s care fees.
  12. The Council replied to say it had received an email from the care home and had advised the care home to follow the default procedure if it wanted to request Council support. It told her by email and during a telephone conversation that unless it received a request from the care home, any arrangement made would have to be between her and the care home as she was a private, self-funding resident.
  13. Mrs X sent a further email jointly to the Council and the care home. She said she had now stopped paying Mrs Y’s care fees. She said she understood that the Council would only step in to pay the care fees if she stopped paying.
  14. Mrs X stopped paying the care fees, but the care home did not contact the Council to request financial support.
  15. In October 2020, Mrs X complained to the Council. She said the care home manager had contacted her that morning to ask why no fees had been paid for Mrs Y since August. She said she told the Council she was stopping paying Mrs Y’s fees in August and had expected the Council would start paying the fees from this point, until she was able to access Mrs Y’s funds. She said the Council had a duty to meet Mrs Y’s care needs and pay for her care until she was granted the court-appointed deputyship.
  16. The Council responded to her complaint. It said:
    • it had spoken to her in April 2020 to explain what the care home needed to do to request financial assistance;
    • it had also explained the process to the care home in June 2020;
    • it was for the care home to decide a what point it approached the Council for financial support. Some care homes may agree not to pursue arrears if they could see a timescale when it would be paid back;
    • at the time of writing, it had received no request from the care home for financial support to pay Mrs Y’s fees; and
    • it had contacted the care home again to ask it if it wanted to request Council assistance with funding through the default process and if so, to provide the required information.
  17. The care home requested Council support through the default process three weeks later.
  18. The Council considered the request and responded to Mrs X the same day, confirming it would provide financial assistance to pay Mrs Y’s care fees until the court approved Mrs X’s deputyship.
  19. Mrs X was unhappy with the Council’s response to her complaint and brought it to us in December 2020. She said:
    • the information provided by the Council was unclear and she had not understood that the care home could only request assistance from the Council if she defaulted on the payments; and
    • the Council did not respond to her email in August 2020, so she presumed the Council would pay the fees from then onwards. The fact it did not do so caused her upset and stress.
  20. The Council told us that it did not reply to her email in August as it did not consider it needed a response. It said the email set out Mrs X’s intentions rather than asked any questions, so it considered the email for information only.

Analysis

  1. When Mrs Y moved into the care home in September 2019, the Council was not involved. Mrs X arranged Mrs Y’s care directly with the care home and paid the care fees directly to them.
  2. The Council acted appropriately by reviewing Mrs Y's placement in December 2019. Although it had not arranged the care, the Council asked Mrs X about Mrs Y’s finances. As Mrs Y had savings over the capital limit and owned a property, the Council was satisfied that:
    • Mrs Y could afford her care;
    • Mrs Y was a self funder and had arranged her care privately; and
    • no further Council support was needed.

The Council considered the situation appropriately based on information available at the time and this decision was not fault.

  1. When Mrs X told the Council that she was unable to access Mrs Y’s accounts, the social worker acted appropriately by referring her to the finance team. The Council requested financial information from Mrs X and supported her to access Mrs Y’s pension and state benefits. It considered her request for financial assistance to pay Mrs Y’s care fees.
  2. It decided it could not provide financial assistance as Mrs Y had savings over the upper capital limit and owned a property. It told Mrs X that she first needed to approach the care home and try to reach an agreement with them. It said if she was unable to continue paying the fees and defaulted on payments, the care home could then approach the Council for support. In these circumstances the Council would consider paying the care fees to prevent a breakdown of the placement. The Council told Mrs X what she needed to do and clearly set out the process for her. This was not fault.
  3. In June 2020, the Council also reminded the care home of the default procedure as set out in the Joint Framework Agreement. It told the care home what it needed to do to request Council support if Mrs X defaulted on payments. Mrs X continued to pay the care fees until August 2020, and the care home did not request support from the Council. This was not Council fault.
  4. In August 2020, the Council told Mrs X by email and during a telephone conversation that any request for financial support had to come from the care home through the default process. When Mrs X emailed again to say she was stopping payments, the Council considered this email for information only. Although Mrs X says the Council should have responded to this email, it had already written to her and spoke with her about what needed to happen a few days earlier. The email did not contain any further queries. The Council is not at fault for considering it for information only.
  5. The care home did not contact the Council to request financial support until October 2020, but this was not Council fault. Once it received the request, the Council appropriately arranged financial support to pay Mrs Y’s fees until the court approved Mrs X’s deputyship.

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Final decision

  1. I have completed my investigation. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman

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