Summary: Mr X complains the Council failed to assess his friend’s contributions for residential care properly. He said Mr Y could not afford the payments. I have not found evidence of fault by the Council.

The complaint

1. The complainant whom I shall refer to as Mr X, complains the Council did not assess residential care contributions properly for Mr Y, for whom he had lasting power of attorney. He says the Council is now unfairly seeking repayment of the debt from him.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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).
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 the complainant and considered the complaint and the copy correspondence provided by the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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Guidance and legalisation

Charging for permanent residential care

5. The Care Act 2014 provides a single legal framework for charging for care and support under sections 14 and 17. It enables a council to decide whether to charge a person when it is arranging to meet a person’s care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
6. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person has to pay towards the cost of their residential care.

Mental Capacity Act

7. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.

Lasting Power of Attorney

8. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
9. There are two types of LPA.
• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.
10. An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.

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What I found

11. Mr Y had previously lived at Mr and Mrs X’s home. The Council had arranged care at home for which he paid a contribution following the Council’s financial assessment. Mr X had Lasting Power of Attorney (LPA) in relation to Mr Y’s property and finances.
12. In 2018 Mr Y’s health worsened and he moved into a residential care home. The NHS assessed Mr Y was eligible for Continuing Healthcare (CHC). This is a package of ongoing care arranged and funded solely by the NHS where the individual is found to have a ‘primary health need’ as set out in the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care.
13. In 2019 the health service reviewed Mr Y’s CHC and decided he was not eligible. The Council then carried out a financial assessment to work out Mr Y’s financial contribution for his residential care. The Council sent forms to Mr X because he had LPA in relation to Mr Y’s finances. Mr X completed the forms which showed Mr Y’s income and outgoings. He included several payments towards life insurance policies and two loans.
14. In May 2019 the Council advised Mr X that Mr Y’s contribution would be £244 per week. Mr X said Mr Y could not afford this because he had loans and life insurance policies that he must continue to pay.
15. The Council said it could not take into account the loans or the life insurance policies because they were not outgoings it could accept. Mr X discussed the issue with the Council. He said the loans had been used for adaptations to his home to assist Mr Y when he moved in. Mr X said Mr Y agreed to pay for the adaptations using the loans. Mr X said that the insurance payments would cover funeral and other expenses and could not be stopped now. If Mr Y stopped the payments the policies would not be paid out and there would be debts which could not be paid out of Mr Y’s estate.
16. The Council explained that as Mr X had LPA for Mr Y, he had a duty to use his income in Mr Y’s best interests. Therefore, Mr X paying for loans for works to his own property out of Mr Y’s income was not appropriate. It said it would carry out a safeguarding investigation. It also said Mr X could be held liable for repayment of the care home charges. The Council asked Mr X to provide further information and evidence regarding the loans and insurance premiums.
17. In July 2019 Mr X’s solicitor wrote on his behalf regarding the financial charge. It considered the Council should take account of the loans and insurance policies when calculating the payments.
18. The Council replied that it had asked Mr X for information regarding Mr Y’s loans and insurance policies, but had not received it. The Council explained that the Care Act 2014 which contained councils’ duties and powers in relation to charging for care did not appear to make provision for life insurance premiums or loans.
19. In order to maintain Mr Y’s placement in the care home, the Council took over payment for care. However, Mr X was liable for the debt and ongoing payments.
20. In February 2020 the Council sent Mr X an invoice for £11,000. It said it would also send him invoices for the ongoing charges.
21. Mr X contacted the Council to dispute the charges. He said he had asked the Council to carry out a financial assessment. The Council replied that it had asked him provide details of Mr Y’s expenses, the life insurance payments, the terms and length of the policies and the amount that would be paid. It also asked for information about surrendering the policies.
22. Sadly, Mr Y died shortly after this.
23. The Council wrote to Mr X in September 2020. It asked if he was the executor of Mr Y’s will, and presumed Mr X would now pay for the outstanding charges.
24. Mr X replied that he was the executor of Mr Y’s will, but he did not agree to make payment. He said he had brought in documents twice, but the Council had not carried out a proper financial assessment.
25. The Council replied that it would review the assessment, but it had not received the documentary evidence it required. It asked who the beneficiary of the insurance polices was and also asked for further information. However, it also advised that there were no allowances or disregards for the insurance premiums and loans. The Council note that if Mr Y had stopped paying the policies would not pay out, but this was known risk when taking out a policy.
26. Mr X sent the Council some further information and a response to some of its questions. He said the issue was causing him stress at a difficult time.
27. The Council replied that it had considered the information Mr X sent and sought advice, but its decision remained the same. It asked Mr X to arrange payment.
28. Mr X complained through the Council’s procedure. He said Mr Y could not have afforded the payments for his care because of his outgoings.
29. The Council responded that it had considered the matter properly taking account of the statutory guidance. It said Annex C of the guidance stated that only mortgage protection insurance to retain an interest in a property could be taken into account. And in any case Mr Y did not have an interest in the property as he did not own it. The Council said its decision remained the same and the debt remained payable by Mr X. It said it considered was aware he had a duty as Mr Y’s LPA to pay the charges and should not knowingly put Mr Y into debt. It considered that Mr X had inappropriately used Mr Y’s money to pay two loans. It did not consider Mr X had provided the information it had requested.
30. It said the payments that the Council had made to the care home were over £144000 and it would seek to recover this in full from Mr X.
31. The Council says that Mr X did not provide any new evidence that changed its decision regarding the financial assessment of Mr Y’s contribution for his residential care charges.

Analysis

32. I have considered the guidance and the regulations regarding financial assessments for contributions for residential care. There is no provision for life insurance policies to be treated as allowable expenses. The Council appears to have taken the guidance and relevant factors into account when making its decision. I have not found fault with the Council’s decision making here. Therefore, I cannot question the merits of that decision.
33. Mr X says that he had an agreement that Mr Y would take out a loan to carry out adaptations to his property for Mr Y. However, the Council has explained that as the property did not belong to Mr Y, he did not have an interest in it. Therefore, responsibility for payment for the works was not Mr Y’s.
34. I have considered the guidance and the regulations regarding loans towards property. There is some provision for disregarding mortgage payments for a person’s property during the period it is disregarded when they first move into residential care. But this did not apply to Mr Y as he did not own the property. I do not consider there is fault in the Council’s decision making in relation to this.
35. The Council promptly advised Mr X that he needed to start making payments for Mr Y’s contributions. However, he did not do so. The amount outstanding built up. The Council also advised Mr X that as LPA he should not knowingly put Mr Y into debt. I consider the Council correctly advised Mr X. The Council has asked Mr X to make an arrangement to pay the outstanding debt.

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Final decision

36. I have not found evidence of fault by the Council. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman