Summary: Mr C complained about the way the Council assessed his mother’s finances and its communications about its decisions. There was fault as the Council has not shown it properly considered Mr C’s mother’s individual circumstances and never provided a response to Mr C’s questions.

The complaint

1. Mr C complains on behalf of his mother, Mrs D. He says the Council has not properly assessed her finances and he disagrees with the Council’s decision that Mrs D should self-fund her care package when she was living in the community.

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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 Mr C. I have considered the documents he and the Council have sent, the relevant law, Guidance and policies and both sides’ comments on the draft decision.

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What I found

5. The Care Act 2014, the Care and Support Statutory Guidance 2014 and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge.

The principles

6. The Guidance says the approach to charging for care and support needs should (among other things):
• ensure that people are not charged more than it is reasonably practicable for them to pay;
• be clear and transparent, so people know what they will be charged;
• promote wellbeing, social inclusion, and support the vision of personalisation, independence, choice and control;
7. Councils must carry out a financial assessment to make a decision about the charges. This will assess the person’s capital and income.

Capital

8. The upper capital limit is currently set at £23,250 and the lower limit at £14,250. A person with assets above the upper capital limit will (generally speaking) have to pay for their own care.

Income

9. Even if the capital is below the threshold of £23,250, residents may have to pay a contribution from their income towards their care.

Capital - property disregard

10. The value of a person’s property is sometimes disregarded in the calculation of their capital but the regulations are different for care provided at a care/nursing home and for care provided in any other setting. I will set out the regulations and Guidance as far as they are relevant to the complaint.

Care in other setting

11. The regulations say the value of the adult’s main or only home is disregarded if a person receives care and support other than in a care home.
12. The Guidance says:
• ‘The financial assessment of their capital must exclude the value of the property which they occupy as their main or only home. Beyond this, the rules on what capital must be disregarded are the same for all types of care and support.’
• ‘In the following circumstances the value of the person’s main or only home must be disregarded: where the person is receiving care in a setting that is not a care home.’

Care in a care/nursing home

13. The regulations and Guidance say the value of the main or only home is disregarded in the calculation of capital in certain circumstances.
14. Where a person is a temporary resident at a care home, where:
• They intend to return to that property and that property is still available to them.
• They are taking reasonable steps to dispose of the property to acquire another more suitable property to return to.
15. Other examples of disregards for residents at a care home are:
• The main and only home can be disregarded where a person is a resident at a care home and the property was occupied by a qualifying person (listed in the Guidance and regulations) since before the person went into a care home.
• The 12-week disregard. Councils must disregard the value of the main and only home for 12 weeks when a person first enters a care home as a permanent resident (and in some other circumstances).
16. A local authority may also use its discretion to apply a property disregard in other circumstances. However, the local authority will need to balance this discretion with ensuring a person’s assets are not maintained at public expense. 

Deferred payment agreement

17. Deferred payment agreements (DPAs) are designed to prevent people from being forced to sell their home in their lifetime to meet the cost of their care when they live in a care home. By entering into a DPA, the person delays paying the care costs by having a legal charge placed on the property. The costs are deferred until the person dies or the property is sold.
18. Local authorities may also at their discretion enter into deferred payment agreements with people whose care and support is provided in supported living accommodation.

Light-touch financial assessment

19. In some circumstances, a local authority may choose to treat a person as if a financial assessment had been carried out. This is known as a ‘light-touch’ financial assessment.
20. The Guidance sets out some examples where a light-touch financial assessment may be considered. For example, where a person has capital which is clearly over the threshold.
21. The Guidance says where a council proposes to undertake a light-touch financial assessment, ‘it should take steps to assure itself that the person concerned is 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, a full financial assessment may be needed.’

Council’s charging policy

22. The Council’s charging policy says a service user can request a review of their charge for any reason and the decision will be made within four weeks of the request.
23. The service user can request an appeal if they are not satisfied with the outcome of the review and a senior officer will conduct the appeal.
24. The appeals process has three stages:
• Informal review.
• Formal review.
• Charges review panel.
25. The service user also has the right to use the complaints process if they feel they have been unfairly treated in the assessment process.

What happened

26. Mrs D lived independently in her home in neighbouring Council K. In October 2019, Mrs D went to hospital after a fall. Mrs D’s ability to live independently had decreased after the fall and she could not return to her home. Her home’s only heating source was a coal fire and the property had stairs. Mrs D did not want to go to a care home so the family found a bungalow in Oldham which Mrs D could rent on a temporary basis.
27. The Council’s social worker assessed Mrs D’s needs for care and support in December 2019. The assessment said: ‘… the family have rented a bungalow whilst her home is adapted.’ The Council agreed to fund a reablement package of care for six weeks. Reablement care is free of charge.
28. Mrs D moved into the bungalow on 20 December 2019.
29. The Council wrote to Mrs D on 22 January 2020 and said it had completed a financial assessment and Mrs D would have to pay the full cost of her care as she had a second property that was not lived in. The Council offered Mrs D a deferred payment agreement.
30. The reablement package ended on 31 January 2020.

Complaint – February 2020

31. Mr and Mrs C made several complaints to the Council in February 2020. I have summarised the complaints insofar as they are relevant to the complaint I am investigating. They said:
• Mrs D had not been financially assessed. They asked the Council to send them the financial assessment forms so they could fill them in.
• Mrs D’s weekly income was £184 but her outgoings were £250 so she could not afford to pay the care package.
• They had been told that the Council had referred the matter to its legal team to find out whether Mrs D’s property should be included in the calculation of her capital. They had not been informed of the outcome of that referral.
• Mrs D could not return to her home without major works to the property. They were trying to sell the home to buy the bungalow Mrs D was renting. They had read the financial regulations and felt that the disregard relating to temporary residents (see paragraph 14) applied to Mrs D’s situation. They wanted to know how the Council had considered this.
32. Mrs D was admitted to hospital on 5 February 2020. She returned home around 16 February 2020 but went back to hospital on 21 February 2020.
33. Mr C told the care agency and the Council that Mrs D was in hospital but says care workers continued to turn up sometimes and the Council continued to charge Mrs D for care she did not receive.
34. Mrs D returned to live at her bungalow on 3 April 2020.
35. The Council sent a letter to Mrs D on 16 April 2020 saying it had reviewed her financial assessment but the outcome remained the same.

Council’s reply – April 2020

36. The Council replied to Mr and Mrs C’s complaint of February 2020 on 21 April 2020 and said:
• In response to the complaint about the failure to carry out a financial assessment, the Council said Mrs D owned a property she did not live in so this meant her capital was above the threshold to be eligible for Council funding. Mrs D may be eligible for a DPA but the Council would have to carry out a financial assessment to decide this.
• In response to the referral to the Council’s legal team, the Council said the legal adviser had said the property could be counted as capital as Mrs D did not occupy the property as her main or only home so this meant she was a self-funding resident. The legal adviser also said: ‘Alongside this, there is also a question around [Mrs D’s] ordinary residence and whether Council K would fund care, therefore [Mrs D] would not qualify for financial assessment under Oldham.’ The Council then went on to say that it had established that Mrs D was an ordinary resident of Oldham.
37. Mr C wrote to the Council on 21 April 2020 as Mrs D had received an invoice for services she had not received as she was in hospital. The Council responded on the same day that it would raise a credit to Mrs D’s account to cancel out the invoices for times when Mrs D had not received care.
38. Mr C was not satisfied with the Council’s response to his complaint. He wrote to the Council on 26 April 2020 and said:
• The Council had not responded to the points he had raised about the possible disregards.
• The Council had not carried out a financial assessment and instead there had been an ‘undignified tug of war’ between the two councils about which council was responsible.
• He had read the option of a light-touch financial assessment but said that, if this was what the Council had done, then it should have informed Mrs D that the assessment was a light-touch assessment.
39. The Council responded to Mr C’s email of 26 April 2020 on 14 May 2020 and said it had made a referral for a full financial assessment and a carer’s assessment of Mr C. The Council felt there was therefore no need for a further response to his letter of 26 April 2020.
40. Mrs D went back to hospital on 16 May 2020 after suffering a stroke. The Council offered a financial assessment to Mr C. It said this would provide him with answers relating to the disregards and provide Guidance about powers of attorney (as there were concerns about Mrs D’s mental capacity), deputyship, council tax and the amount owed to the Council.
41. There were further emails between the Council and Mr C on 19 May 2020. Mr C said he wanted the Council to set out its position in terms of the property disregards in writing as this was the real issue in terms of the financial assessment. The Council then said Mr C had ‘declined’ a financial assessment which Mr C strongly denied.
42. The Council wrote to Mr C on 22 May 2020 and said:
• It listed the possible exemptions (disregards) for property but said it had not been made aware that Mrs D’s property fell within the disregards. It said it would further consider this if Mr C could provide evidence.
• It could not offer a DPA at the moment as Mrs D’s property was unregistered, but explained the principles of the scheme.
43. Mr C wrote to the Council on 31 May 2020 to provide the further evidence on the disregards. He said the Council had never referred to the disregards, even after Mrs C referred to them in her email. He said, if the Council had asked, he could have told them they had contacted various contractors as they were considering renovating Mrs D’s home and they had been in touch with estate agents to buy another property with the proceeds of the sale. Therefore, Mrs D’s property should be considered for a disregard.
44. There was further correspondence between the Council and Mr C in the following weeks and months, but the Council never explained how it had considered the matter of the disregards.
45. Mr C raised further questions about the invoices on 26 June 2020 as he said Mrs D had been charged for a day when she was in hospital and had also been charged for hourly visits, when the visits were only for half an hour.

Council’s final reply – July 2020

46. The Council’s final reply was provided by Council’s solicitor on 27 July 2020. He said the following disregards did not apply to Mrs D’s property:
• The 12-week disregard.
• The disregard relating to a qualifying person lives in the property.
47. He concluded: ‘I have not seen any of the above scenarios that would mean [Mrs D’s] property should not be considered for assessment purposes…’
48. It is my understanding Council later waived Mrs D’s debt because she was eligible for Covid-funding. Mrs D moved into a care home in July 2020 and her property was sold. She is self-funding her care at the care home.

Council’s reply to the Ombudsman

49. In its reply to the Ombudsman, the Council said it did not consider any of the disregards applied to Mrs D’s home. Mrs D was not in a temporary care home placement. The Council also said: ‘ In terms of [Mrs D’s] stay at the bungalow being temporary; in an email dated 4 February 2020… the Council was informed that [Mrs D’s] family intended to sell her property in [council K] and were attempting to purchase the bungalow she was residing in in Oldham. Case notes from April 2020 also state the intention was for Mrs D’s property to be sold.’
50. The Council also said: ‘an offer of a financial assessment was made but declined by [Mrs D’s] son’. Therefore, in line with the legislation and Guidance, the Council treated Mrs D as full cost.
51. The Council also sent me copies of the financial assessment documents, but these documents were mostly left blank as the Council noted that Mrs D owned a property over the £23,250 threshold. The form dated 6 April 2020 concluded the assessed result as ‘full charge (accepted)’.

Mr C’s complaint to the Ombudsman

52. Mr C’s complaint relates to the Council’s actions between December 2019 and July 2020.
53. His complaints are:
• The Council failed to carry out a proper financial assessment when it made the decision to charge Mrs D. The Council has never properly considered Mrs D’s individual circumstances and considered disregarding the property as capital or replied to the family about its questions in relation to disregards.
• The Council’s communications about the charges have been poor and lacking transparency.
• The Council charged Mrs D for care and support which she did not receive as she was in hospital.
• The Council did not follow its three-stage appeal process for financial assessments.
54. In his comments on the draft decision, Mr C also stressed that he did not decline the financial assessment in May 2020. He said he was seeking a full financial assessment of his questions relating to the property which the Council never provided and was waiting for the Council to provide this.

Analysis

55. I uphold Mr C’s complaint that the Council failed to carry out a proper financial assessment of Mrs D and I agree with Mr C that its communications with Mr C about the assessment were poor.
56. I want to be clear what I mean by financial assessment. I agree it may not be necessary for the Council to fill in the financial assessment form in its entirety and that has not been the focus of my investigation. I have focussed on whether the Council properly considered Mrs D’s personal circumstances and properly assessed whether her property should be disregarded as capital because of her unusual and temporary circumstances.
57. I accept the Council could carry out a light-touch financial assessment but only if Mr C (on behalf of Mrs D) agreed. It was clear from February 2020 that Mr C did not agree and that he wanted a more detailed assessment and, in particular, answers to the questions how the Council had considered the property disregards.
58. The Council’s response to Mr C’s complaint from April 2020 did not address Mr C’s questions about the property disregards.
59. Mr C was understandably not satisfied with the response and asked the Council again to answer his questions about the disregards. The Council responded in June 2020 asking Mr C to provide evidence about the disregards and Mr C did so in his response letter. The Council then sent an odd response in July 2020 where it analysed two disregards (which were not relevant) and said they did not apply to Mrs D, but still failed to address the disregards that Mr C had been raising since February.
60. I accept that Mrs D’s situation was unusual and one that was not really addressed in the Guidance as most people who receive care and support outside of a care home, do so in their own home.
61. Mrs D was renting a bungalow temporarily but she was planning to either return to her home or to sell her home and to buy the bungalow or another more suitable home. The issue therefore was that Mrs D’s situation was temporary and Mr C felt that this aspect had never been properly considered in the Council’s decision to include Mrs D’s property in its calculation of capital.
62. Mr C questioned whether the disregard described in paragraph 14 of my decision applied to Mrs D’s situation. That disregard is compulsory in cases where a person is living in a care home, but the Guidance did not really say whether it applied when a person was in Mrs D’s position as the Guidance did not cover every eventuality.
63. I agree it did seem odd that the Council would have a duty to pay for Mrs D’s care if she had moved into a care home on a temporary basis, but not if she was receiving that care package in a rented bungalow on a temporary basis. Mr C questioned whether it was right that Mrs D was expected to diminish her capital to pay for her care package when she had to use that capital in the future as her situation was temporary.
64. It is not the Ombudsman’s role to carry out a financial assessment and I cannot say that the Council has to apply a discretion. A discretion is, by definition, discretionary. However, when the Council has discretionary powers, I would expect the Council to show it has properly considered using them. The Council has not provided evidence that it has done so in Mrs D’s case and failed to properly explain or communicate its reasons for its decisions in its communications with Mr C. That was fault.
65. I note that Mr C also disagreed that Mrs D’s ordinary residence was in Oldham. If there is a dispute about ordinary residence which cannot be resolved between councils, then the Secretary of State makes a decision. Generally, disputes arise where neither council wants to take responsibility and accept that the person is ordinarily resident in their area.
66. I have not investigated this matter as the Council accepted responsibility and ordinary residence disputes are outside of the Ombudsman’s jurisdiction. I think possibly the Council confused matters by saying that, as Mrs D was now ordinarily resident in Oldham, her property in council K was no longer her main residence and could therefore be included in the calculation of the capital. That was not correct as they were separate issues.
67. The Council has already admitted that there were errors in the invoices it sent and then raised credit for those periods when Mrs D was wrongly invoiced. I agree therefore that this was fault as Mrs D should only have been invoiced for care that she received.
68. I agree that the Council should have informed Mrs D or Mr C of its appeal process for financial assessments and its failure to do so was fault. The Council’s initial letter dated 22 January 2020 which informed Mrs D of the outcome of the financial assessment did not provide any information on how Mrs D could challenge that decision. Neither did the Council’s letter dated 16 April 2020, nor did the Council mention this in its correspondence with Mr C.
69. I have considered the injustice Mrs D and Mr C suffered. The Council cancelled the debt as Mrs D was eligible for Covid funding so Mrs D has not suffered any financial injustice. But there was some injustice as Mr C spent several months in correspondence with the Council trying to obtain the answers he was entitled to.
70. The Council has agreed to Council apologise to Mr C and pay him £100. This is to recognise that the Council’s communication in relation to the consideration of financial disregards and the financial assessment appeal process could have been clearer.

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Agreed action

71. The Council has agreed to take the following actions within one month of the final decision. The Council should:
• Write to Mr C and acknowledge the fault and apologise.
• Pay Mr C £100.
• Remind relevant staff of the importance to inform residents of their right of appeal if they disagree with the outcome of the financial assessment.

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Final decision

72. 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