Summary: Mr B complains that the Council overcharged his late mother for her domiciliary and residential care. The Ombudsman considers that there were errors in the financial assessment for Mr B’s mother’s residential care and, as a result, she should have been charged more for her care. The Ombudsman considers the Council agreeing to write off the additional charges is a suitable remedy.

The complaint

1. Mr B complains that:
• the Council has refused to provide a copy of the Terms of Conditions of the contract for his late mother’s domiciliary care;
• the Council has not applied the correct disregards to his late mother’s account;
• the Council has not properly explained how it has calculated the charges for his late mother’s residential care;
• his late mother was overcharged for her care.

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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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

5. I have considered Mr B’s written complaint and supporting correspondence. I have made enquiries of the Council and considered its response and supporting papers. I have had regard to relevant legislation and guidance. I have also sent Mr B and the Council a draft decision and invited their comments.
6. Although it was more than 12 months from the time that Mr B first questioned his mother’s domiciliary care charges, I have exercised discretion to consider this part of the complaint.

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What I found

Legal and administrative background

Charging for permanent residential care

7. 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.
8. The rules state that people who have capital over the upper capital limit of £23,250 are expected to pay the full cost of their residential care home fees. However, once their capital has reduced to less than the upper limit, they only have to pay an assessed contribution towards their fees.
9. Councils 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.

Personal expense allowance

10. The Personal Expense Allowance (PEA) is the weekly amount that people receiving local authority-arranged care and support in a care home (residents) are assumed to need as a minimum for their personal expenses and local authorities must apply this.
11. The PEA is specified in regulations made under section 14(7) of the Care Act 2014 and applies to all people whose care and support in a care home is arranged by a local authority under section 18 or 19 of the Act. For the period in question, the PEA was (and remains) £24.90 per week.
12. The PEA is intended to allow residents to have money for personal use. Based on a financial assessment of their resources, individuals must be left with the full value of their PEA. It is then up to them to determine how they spend it.
13. The PEA should not be spent on aspects of care and support that have been contracted for by the local authority and/or assessed as necessary to meet the person’s eligible care and support needs by the local authority or the NHS.

Charging for non-residential care services

14. Non-residential care is care other than in a care home, usually in people’s own homes. Councils have discretion to choose whether or not to charge for non-residential services. Where a council decides to charge it must also do so in line with the Regulations and Guidance referred to in paragraph 7 above.
15. If a council takes a disability benefit into account when calculating how much a person should contribute towards the cost of their care, they must also assess disability-related expenditure (DRE) in the financial assessment. This is because the Guidance says councils must leave individuals with enough money to pay for necessary DRE to meet any needs not being met by the council. DRE are costs that arise from a disability or long-term health condition. Councils should not be inflexible in the costs it accepts and should always consider individual circumstances. Some councils disregard set amounts for DRE, but if costs are higher than the set amount a full assessment of those costs should be made.

Minimum income guarantee

16. People receiving local authority-arranged care and support other than in a care home need to retain a certain level of income to cover their living costs. Under the Care Act 2014, charges must not reduce people’s income below a certain amount, but local authorities can allow people to keep more of their income if they wish. This is a weekly amount and is known as the MIG. Under the Council’s policy, the standard minimum income (protected income) for a person in receipt of Pension Credit was £194.50.

Savings credit disregard

17. As part of the Pension Credit system, Savings Credit is extra money paid each week for people who have an income above a certain threshold. People above the minimum eligibility criteria for Savings Credit who also qualify for means-tested support to pay for care are allowed to keep an amount of money in addition to the PEA or the MIG. This is the Savings Credit disregard. The savings credit disregard is currently up to £5.75 per week for individual supported residents

What happened

18. Mr B’s late mother, Mrs C, previously lived in Council-run accommodation. In 2018, following a needs assessment, it was agreed that she should receive a package of domiciliary care. Mr B, who had a Power of Attorney, completed a financial assessment form on his mother’s behalf, so that the Council could assess her financial contribution towards the cost of her care package.
19. Mrs C was assessed as having to pay a contribution of £138.04 and subsequently £131.51 per week towards her domiciliary care package.
20. Due to illness, Mrs C had to spend some time in hospital. Mr B queried the charges for the period when his mother in hospital. The Council explained that during the break in service Mrs C would be liable for the cost of care received (up to the maximum assessed charge for that week), rather than the assessed contribution. The Council noted that Mrs C had been overcharged £131.51 for one period and reimbursed the charge. Mr B says he did not receive the letters.
21. The following year, Mr B contacted the Council and explained that his mother would need to move into residential care. The Council undertook a further financial assessment with Mr B’s involvement.
22. As Mrs C had capital in excess of £23,250, the Council explained that she would initially be liable for the full £444.17 cost of the service, until her savings fell below the upper threshold. The charge would then fall to £347.07 for four weeks and then to £212.42 per week after her pension entitlement changed. The Council provided financial assessments setting out the calculations.
23. Mrs C sadly passed away later that year.
24. Mr B then wrote to the Council querying the charges incurred for domiciliary care while his mother had been in hospital. He asked for a copy of the terms and conditions of the domiciliary care contract. The Council provided a copy of its earlier letter explaining the basis on which charges would be made for part-weeks and provided a copy of its charging policy.
25. Mr B raised further queries and complaints about the charges for domiciliary and residential care, and various allowances. The Council explained the basis for the charges and considered that Mrs C had been correctly charged.
26. However, the Council subsequently noted that Mrs C’s weekly PEA of £24.90 had wrongly been excluded from the calculation for her contribution to her residential care from the date that her assets had fallen below £23,250. It reimbursed Mr B £597.60 in respect of this allowance.

My assessment

Domiciliary care - full cost of care package / request for T&C

27. Mr B has questioned the basis on which his mother was charged for incomplete weeks’ domiciliary care. He has asked the Council for a copy of the terms and conditions of the domiciliary care contract.
28. The Council has explained that the domiciliary care contract is a private legal document involving the Council and care provider which it cannot disclose for Data Protection reasons.
29. It has explained that it has carried out a financial assessment in accordance with the Care Act. In accordance with its policy, it has charged Mrs C the assessed weekly contribution to her care. Where there has been a break in service, it has charged Mrs C for each full day of domiciliary care received up to her full assessed weekly contribution of £131.51. The weekly domiciliary care charge of £471.80 equates to a daily cost of £67.40, so Mrs C would be liable for the full £131.51 weekly contribution for any week in which she received two days or more domiciliary care.
30. I see no fault here.

Domiciliary care – savings credit disregard

31. Mr B has questioned whether the Council applied savings credit disregard to the calculation. The Council has confirmed that savings credit was not included in the calculation, as shown in the financial assessment, so no disregard was applicable. I see no fault here.

Residential care - full cost calculation

32. Mr B says that the financial assessment does not show the calculation of the full cost of his mother’s care. However, there is no calculation to be carried out - the figure is simply the full cost of the commissioned residential care.

Residential care – savings credit disregard

33. The financial assessment shows that savings credit of £5.75 was disregarded, so savings credit disregard was applied to the calculation.

Residential care – disability related expenses

34. Mr B asked the Council to take into consideration disability-related expenditure. The Council explained that the cost of the items for which he was seeking to claim would be covered by Mrs C’s Personal Expense Allowance. I see no fault here.

Residential care – Personal Expense Allowance

35. The Council has acknowledged that PEA was wrongly excluded from the calculation. This was fault but the Council identified this error in the course of Mr B’s complaints and reimbursed £597.60, so it has remedied this fault.

Residential care – reduction in charges

36. Mr B has questioned why the charges for his mother’s residential care changed.
37. As the Council has explained, Mrs C paid the full £444.17 cost of her care until her capital fell below £23,250. Mrs C’s contribution was reduced to £347.07 for four weeks (based on her capital and income) when her capital fell below £23,250. The final figure of £214.42 per week reflected the reduction in Mrs C’s income as she was no longer eligible for certain benefits.
38. The Council has now acknowledged that the diminution of capital calculation from the original financial assessment did not include Mrs C’s occupational pension. The Council has explained that, had it included Mrs C’s pension in the calculation, her capital would not have remined above the upper threshold for a further seven weeks and so Mrs C would have had to pay the full cost of her care for this period. Mrs C would therefore have had to pay an additional £1,345.26 in care home charges.
39. As a remedy for this error, the Council has agreed not to seek reimbursement of this additional sum. Mr B has questioned the accuracy of this figure but does not propose to pursue matters further on the basis that the Council has agreed to write of the overcharge.
40. As to the omission of Mrs C’s pension from the calculation, the Council has also addressed this error with the officer in question. I see no grounds to seek any remedy beyond the action already proposed and taken by the Council.

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Agreed action

41. The Ombudsman considers the Council’s agreement to write off the additional charges to be a suitable remedy for the errors in calculating Mrs C’s financial contributions to her care.

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Final decision

42. I have closed my investigation into Mr B’s complaint as I consider the agreed action a suitable remedy for any injustice to Mr B.

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Investigator's decision on behalf of the Ombudsman