Summary: There was fault in the Council’s communication about the charges for care home fees, a failure to carry out a financial assessment and a long delay in the Council’s response to Mrs B’s complaint. The Council also failed to consider whether Mrs C had any disability related expenditure. The Council has agreed to apologise, carry out a review of the financial assessments, pay a financial remedy and carry out service improvements.

The complaint

1. Mrs B complains on behalf of her mother, Mrs C. Her complaint relates to Mrs C’s financial contribution to the care home fees. She says there was poor communication, a failure to assess whether Mrs C could afford the contribution, delays in the complaint response and a failure to consider disability related expenditure.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have discussed the complaint with Mrs B. I have considered the documents that she and the Council have sent, the relevant law, guidance and policies and comments on the draft decision.

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What I found

Law, guidance and policies

5. 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 powers to charge. The Council also has its own policies.

Information and advice

6. Councils have a duty to establish information and advice services relating to care and support for all people in its area. This includes advice on eligibility and applying for disability benefits and other types of benefits.

Financial assessment and charging

7. The Guidance sets out the overarching principles which underpin charging for adult social care services. These are (among others):
• Ensure that people are not charged more than it is reasonably practicable for them to pay.
• Charging should be clear and transparent, so people know what they will be charged.
8. Where a local authority has decided to charge, except where a light touch assessment is permissible, it must carry out a financial assessment of what the person can afford to pay and, once complete, it must give a written record of that assessment to the person. 

Light-touch financial assessment

9. 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 known as a ‘light-touch’ financial assessment.
10. For example, where the local authority charges a small or nominal amount for a particular service which a person is clearly able to meet and would clearly have the relevant minimum income left, and carrying out a financial assessment would be disproportionate.
11. Where a person does not agree to the charges, a full financial assessment may be needed.
12. Councils must also inform the person when a light-touch assessment has taken place and make clear that the person has the right to request a full financial assessment should they so wish, as well as making sure they have access to sufficient information and advice, including the option of independent financial information and advice.

Capital threshold

13. The upper capital limit to be eligible for funding for social care support by the local authority is currently set at £23,250. Below this level, a person can seek means-tested support from the local authority.
14. Where a person’s resources are below the lower capital limit of £14,250 they will not need to contribute to the cost of their care and support from their capital. 

Financial contribution - income

15. The financial assessment will determine what financial contribution the resident has to make towards their care home fees from their income.
16. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person’s income below a certain level.

Top-up fee

17. When it has been decided that a person’s needs are best met in a care home, the council must ensure that at least one accommodation option is available within the person’s personal budget and it should ensure that there is more than one of those options.
18. However, a person can choose a more expensive care home if a third party or in certain circumstances the resident is willing and able to pay the additional cost. This is known as the top-up fee.

Personal expenses allowance

19. People in a care home will contribute most of their income towards the cost of their care and support. However, a local authority must leave the person with a specified amount of their own income so that the person has money to spend on personal items such as clothes and other items that are not part of their care. This is known as the personal expenses allowance (PEA).
20. Local authorities have discretion to apply a higher income allowance in individual cases, for example where the person needs to contribute towards the cost of maintaining their former home.

Disability related expenditure

21. Where disability-related benefits are part of a person’s income, the local authority should make an assessment and allow the person to keep enough benefit to pay for necessary disability-related expenditure to meet any needs which are not being met by the local authority.

Intermediate and reablement care

22. The council must provide intermediate care and reablement care free of charge for up to six weeks, even if the person is above the capital threshold.
23. Intermediate care services are provided to people, usually older people, after they have left hospital or when they are at risk of being sent to hospital. Intermediate care is a programme of care provided for a limited time to assist a person to maintain or regain the ability to live independently.
24. ‘Reablement’ is a particular type of intermediate care, which has a stronger focus on helping the person to regain skills and capabilities to reduce their needs, in particular through the use of therapy or minor adaptations.

Charging for temporary residential care

Where a person is a short-term or temporary resident at a care home, there is a degree of discretion or modified charging rules to take account of this.

25. A short-term resident is someone provided with accommodation in a care home for a period not exceeding 8 weeks. Where a person is a short-term resident a local authority may choose to assess and charge them based on the rules for care or support arranged other than in a care home.
26. A temporary resident is someone whose stay in a care home is unlikely to exceed 52 weeks. Because a temporary resident is expected to return home their main or only home is usually disregarded in the assessment of whether and what they can afford to pay. In addition, for example, certain housing-related costs are also disregarded in the financial assessment.

Council’s charging policy

28. The Council says the charges for short-term/temporary residential care are age dependent. Residents of pensionable age are charged £152.20 per week (current policy).
29. The Council has a two-stage appeal process if someone disagrees with the financial assessment. At stage one the assessment is reviewed by an appropriate manager and at stage two it is reviewed by an independent panel.

What happened

30. Mrs C is an elderly woman who lived in an extra care housing (ECH) scheme. She was admitted to hospital in May 2019.
31. The Council’s hospital team became involved in the following months to plan Mrs C’s discharge from hospital. Mrs C’s health fluctuated but Mrs C and the family had hoped that Mrs C could return to live at her ECH flat. However, this was not possible as it became clear, as time progressed, that Mrs C needed night-time care which the ECH unit could not provide.
32. The Council’s social worker assessed Mrs C in July 2019 and said Mrs C had care and support needs which could only be met in a care home. The plan was for Mrs C to stay at a care home on a short-term basis and review the situation in the future.
33. Mrs B said the Council gave her a list of care homes, some which charged a top-up fee and some without. Mrs B viewed 11 care homes and chose care home K for Mrs C. The support planner and Mrs B spoke on 19 July 2021. The note of the meeting said Mrs B and her brother were willing to fund the top-up fee for a short period until a review or a bed became available in other care homes which the family preferred. The note said the support planner had explained ‘out of borough placement and how it is funded.’
34. The Council’s support planner met Mrs B at care home K on 23 July 2019. The note of the meeting said: ‘We went through finances’. The support planner explained the top-up fee and the implications.
35. Mrs C moved into the care home on 23 July 2019.
36. Mrs B signed the top-up fee agreement on 26 July 2021. The agreement included a sentence which said: ‘The top-up payment must be paid in addition to the assessed client contribution which is paid from the service user’s own funds.’
37. The social worker reviewed Mrs C’s needs on 30 August 2019. Mrs C had suffered some recent chest infections and was still recovering. She continued to have night-time needs which the ECH unit could not provide. Mrs C was confused during the assessment and the social worker recommended there should be an assessment of her mental capacity. The social worker agreed to extend the short-term care for a further six weeks and then there would be a further review.
38. The social worker re-assessed Mrs C on 10 October 2019. The social worker said there was a deterioration in Mrs C’s physical and mental abilities. The social worker said Mrs C now needed 24/7 support on a permanent basis and said her placement at the care home should be permanent which was agreed by the family.
39. The Council carried out a financial assessment of Mrs C on 14 October 2019 and said her weekly contribution would be £223.93 from that date.
40. The Council sent an invoice to Mrs B for the contribution from July to October 2019. I have not seen the invoice, but I understand the Council charged Mrs C the standard weekly fee of £146.19 (for temporary/short term placement) for 10 weeks so the total was £1461.90.
41. Mrs B rang the Council on 24 October 2019. She had received the invoice and said this contribution had never been discussed with her as they had only discussed the top-up fee. The Council officer’s note of the telephone conversation said: ‘Unfortunately, I cannot see a charging letter in documents to support that this was discussed.’ The officer also noted that the charges for the extra care provision at the ECH unit should have ended on 13 May 2019 but were not ended until 4 July 2019.
42. There was a note for 29 October 2019 which said: ‘Spoke to daughter [Mrs C] regarding the contribution. A letter wasn’t generated but contribution was discussed.’
43. The finance officer met with Mrs B on 31 October 2019. Mrs B said nobody had told her that Mrs C would have to pay a contribution towards the short-term care at care home K. The finance officer said the social worker had said she had not put this in an email but had told Mrs B several times about the contribution and had put this in the case notes. Mrs B said she could only remember the top-up fee conversation. She said she would have told the Council Mrs C could not afford a contribution as she was still paying for her extra care housing at the time.
44. Mrs B made a complaint on 5 November 2019 and said:
• It was agreed at the meeting (on 23 July 2019) that Mrs C needed a period of respite care in a care home. The top-up fees were explained to her and she agreed she had to pay these fees immediately.
• No other fees were discussed. If she had been informed that Mrs C had to pay a contribution, she would have explained that this would be difficult as Mrs C was still paying rent and care fees on her extra care housing.
• A friend, who also worked for the Council, attended the meeting and she could confirm that Mrs B was not given the information about the contribution.
45. There was a meeting between the Council’s finance officer and Mrs B on 20 February 2020. Mrs B said she had made a complaint but this had not been responded to. She was advised to resubmit the complaint via the formal complaints process.
46. A manager at the Council replied to Mrs B’s complaint on 9 July 2020 and said:
• He apologised for the delay in the response.
• He had read the records of the conversations the support planner had with Mrs B and the top-up agreement.
• The top-up agreement said top-up fees were paid separately from the contributions.
• An eligibility letter was sent to Mrs C’s old address but no letter was sent to Mrs B.
• He noted that Mrs B said Mrs C could not afford the contribution alongside the fees for the tenancy and offered her a payment plan.
47. Mrs B wrote a further letter of complaint on 11 August 2020. She said:
• It was unacceptable for the Council to take eight months to reply to her complaint.
• The contributions were never explained to her, only the top-up fees.
• She did not understand how a pensioner with no savings could be expected to pay the contributions as well as her rent and utility bills. The financial assessment did not consider Mrs C’s rent, electricity bills, telephone bills from May 2019 until October 2019.
• In addition, nobody explained to her that attendance allowance stopped when a person was in hospital for more than 28 days. This resulted in an overpayment of £2,000 which Mrs C then had to repay.
• Mrs C now had only £1,000 in the bank. This amount would not increase as the Council only left her with £24.90 per week from which Mrs C had to pay newspapers, toiletries and continence pads.
• Since September 2019, Mrs C had lost all her mobility and was incontinent. Mrs C had not received any help towards the cost of incontinence pads and Mrs B had paid for the incontinence pads from Mrs C’s savings in the bank, but these were decreasing. This meant that, if Mrs C needed any replacement clothes, she would not be able to afford them.
48. The support planner spoke to Mrs B on 20 August 2020. Mrs B said she did not agree to paying the first six weeks’ contribution as she had not been informed of the contribution. Mrs B said she was also concerned that Mrs B was only left £25 a week which was not enough money. She said the care home often rang asking for things that Mrs C needed or had lost. She also had been buying Mrs C’s incontinence pads.
49. Mrs B sent in her appeal against the charges on 23 October 2020. The appeal related to the period from July 2019 to October 2019 when Mrs C’s stay at care home K was still temporary and she still had her tenancy at the ECH unit. The document showed that Mrs C’s total monthly outgoings included £588.08 (rent) and £584.76 (care fees) in additional to council tax, gas, house insurance, clothing and shoes, internet and newspapers. She received a pension of £249.95 and housing benefit of £110.14 a week. She also received £350.60 disability living allowance each month.
50. Mrs B said:
• During the 10 months Mrs C was in hospital, we discussed funeral arrangements and costs. In September we transferred £3,000 into my savings account to cover any costs as Mrs C had no savings.
• At the time Mrs C went into hospital, she paid her three grandchildren £15 a week spending money.
• The amount requested by the Council was more than Mrs C’s excess income after her monthly outgoings were deducted. In addition, the Council had given no consideration to essentials that Mrs C had to buy such as incontinence pads.
51. The Council considered Mrs B’s appeal as a request for a ‘financial hardship’ payment. The notes of the ‘financial hardship’ meeting said:
• Mrs B had not informed the DWP of the change in circumstances which led to an overpayment of £2,629.50 of DLA.
• The monthly rent was £588.04 and Mrs C received housing benefit of £110.14 per week.
• Short term care costs were £133.80 per week.
• The transfer of £3,000 for funeral costs and the payments to the grandchildren.
• There should not have been care charges between 15 May 2019 and 23 July 2019 when Mrs C was in hospital. Were savings made during that period? There would also not have been any food costs during that period.
52. The Council wrote to Mrs B on 25 November 2020 and said the information it had received did not provide evidence of ‘excessive financial hardship.’ Therefore, her appeal had been denied.
53. Mrs C then came to the Ombudsman as she did not agree with the Council’s response.

Further information

54. I asked the Council to send me all the financial assessments of Mrs C. The Council sent me assessments dated 14 October 2019, 6 April 2020 and 12 April 2021. These showed the Council had not allowed for any disability related expenditure from October 2019 onwards.
55. I queried the DRE and the Council said: ‘The Council are unable to include disability related expenditure as part of a residential assessment. Which continence products are classed as.’
56. Mrs B has provided more information about the cost of the incontinence pads. She said that, initially, she was not informed that Mrs C may be eligible for NHS funding to fund the incontinence pads so the pads were funded privately. Once Mrs B was informed of a possible eligibility under the NHS, Mrs C then had to wait for an incontinence assessment because of delays caused by Covid-19. Mrs B said Mrs C had now been assessed and was receiving some NHS funding for incontinence pads but this did not cover all the incontinence pads she used.
57. I asked the Council whether it carried out any financial assessment or affordability assessment for the short-term care from July to October 2019. The Council said short term/temporary placements were charged at a standard rate which was not subject to a financial assessment.
58. I asked the Council about the hardship assessment as it was difficult to determine, from the information I had, how the Council reached its decision. I had read the minutes of the meeting but this listed the income and expenditure and discussion points. I noted that under ‘income’ the Council listed savings of £4,098.
59. I was concerned that one of the considerations appeared to be that, as Mrs C had some savings (well below the £23,250 threshold), she was able to afford the contribution and was expected to pay from her savings, not her income. This would not be in line with the Care Act 2014 or the regulations.
60. The Council said it took a ‘holistic’ approach in the assessment and that the assessment was outside of the Care Act 2014.

Analysis

61. The Council has not provided written evidence that it informed Mrs C or Mrs B that Mrs C would have to pay a contribution or what the contribution would be during her initial temporary stay at care home K.
62. I do not agree that the mention of an assessed contribution in the top-up fee agreement constituted informing Mrs B of the contribution. The top-up fee agreement did not say whether a contribution applied in Mrs C’s particular case, nor did it say what the contribution amount was.
63. Councils have a duty to be clear and transparent in terms of charging and to inform residents on what they will be charged. This failure to inform Mrs B or Mrs C of the contribution amount was fault.
64. The Council did not inform Mrs B of the cost of the contribution until October 2019 which was four months after Mrs C moved into care home K. This delay was further fault.
65. A fundamental principle of the statutory framework is that charges should be based on an assessment of a person’s ability to afford the costs of the care and councils cannot charge unless they have carried out a financial assessment. The Guidance sets out how councils should financially assess residents who are in a care home on a temporary basis. These residents are assessed differently as they may still own a property or may still have additional costs related to running a property which they intend to return to which the Council needs to consider in its financial assessment.
66. This was the exactly the position that Mrs C was in as she was continuing to pay rent (her housing benefit did not cover the entire rent), utility bills and the cost of the care at the ECH unit when the Council was charging her for the temporary care at care home K.
67. I accept that councils may sometimes proceed based on a light-touch financial assessment. I also accept that councils sometimes charge a flat rate while they carry out a financial assessment and then, once the financial assessment has taken place, adjust the charges.
68. But in Mrs C’s case, the Council did not offer a financial assessment at all and this was fault.
69. As soon as Mrs B was aware of the charges (in October 2019), she told the Council Mrs C was unable to afford the charges. The Council should have carried out a financial assessment at this stage but failed to do so.
70. The Council then failed to respond to Mrs B’s complaint from October 2019 until July 2020. This long delay was further fault.
71. And in its complaint response, the Council still did not offer Mrs C a financial assessment, but instead offered her a payment plan.
72. From the evidence I have seen, the Council has not carried out any financial assessment to determine whether Mrs C could afford the temporary charges between July and October 2019. I accept the Council carried out a ‘hardship’ assessment, but this was not a substitute for a financial assessment as it did not follow the principles of a financial assessment.
73. I am concerned about the Council’s approach in the ‘hardship’ assessment and the fact that the Council appeared to include Mrs C’s savings in its consideration of the affordability of a contribution from her income. The Council should only have considered Mrs C’s income as Mrs C’s capital (savings) was well below the threshold of £23,250.
74. In addition, there was no explanation to Mrs B on how the Council reached the decision that she had failed to ‘provide evidence of excessive financial hardship.’ The Council did not send Mrs B any calculation on how it compared Mrs C’s income with her outgoings which should be the basis of any financial assessment. This poor communication and lack of transparency was fault.
75. I have also considered the financial assessments the Council carried out to determine the charge for the permanent placement, after October 2019. I do not agree that the Council cannot consider DRE in a residential placement. That is not in line with the regulations or Guidance.
76. I agree that it is rare to have DRE in a residential placement, but the duty to take into account DRE is universal and applies to residential placements. Therefore, the refusal to consider DRE because Mrs C was in a care home, was fault.
77. Mrs B has also complained about the Council’s failure to inform her that attendance allowance (a type of benefit) is not paid to residents of care homes if they are council funded. The Council had an overall duty to provide information and advice, including advice on benefits and I agree it would have been good practice for the Council to explain the changes in eligibility for attendance allowance once Mrs C moved to care home K.

Injustice and remedy

78. I have considered the injustice Mrs C has suffered because of the Council’s fault.
79. I cannot carry out a financial assessment and I cannot say what the outcome of a financial assessment would have been. Only the Council can do this.
80. I will therefore ask the Council to carry out a financial assessment relating to the charges between July and October 2019. This should take into consideration any costs Mrs C still had relating to her ECH unit. However, I appreciate that this will be difficult as Mrs C repaid some of the income she received at the time (attendance allowance) but also was refunded some of the expenditure she had (cost of the care at the ECH unit).
81. I will also ask the Council to review the financial assessments it carried out after October 2019 when Mrs C became a permanent resident. The Council should consider whether there was any DRE during that period. I accept that the cost of incontinence pads may be partly or wholly funded by the NHS and the Council should not cover the cost of items that are NHS funded. But the costs which were not covered by the NHS may have to be included as a DRE. That is something which the Council must assess.
82. I am also of the view that, regardless of the outcome of the assessments, the Council should provide a financial remedy for the injustice caused by the fault itself, particularly the poor communication, the failures to follow the statutory guidance, the delays in its responses and the refusal to consider DRE. Although it is not known yet whether Mrs C suffered a direct financial cost as a result of this, she suffered distress by the fault and I therefore recommend a symbolic amount of £300 to represent this.
83. I have also recommended some service improvements to address the fault I have found.

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Agreed action

84. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise in writing for the fault to Mrs B and Mrs C.
• Carry out a financial assessment of Mrs C relating to the charges in the first 10 weeks when she was a temporary resident at the care home.
• Review the financial assessments it has carried out of Mrs C after October 2019 and consider any possible DRE during that time.
• If the charges to Mrs C are reduced because of these financial assessments, the Council should refund Mrs C (or reduce any outstanding invoices).
• Pay Mrs B £300 to reflect the distress suffered by the fault.
85. The Council has agreed to take the following actions within two months of the final decision. It will:
• Consider a review of its charging policy, particularly in relation to the charges for short term residential care and whether a financial assessment should be offered.
• Remind staff of the regulations and statutory guidance relating to DRE and the assessment of income.

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Final decision

86. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman