Summary: Mr X complained about the way the Council calculated Mrs Y’s contribution to her care costs and the way it dealt with his complaint about this. He said it increased Mrs Y’s costs “astronomically” and “out of the blue”. This caused the family much anxiety. We find the Council was not at fault in the way it calculated Mrs Y’s contribution, but it was at fault in the way it dealt with his complaint. The Council has already apologised and offered a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains on behalf of his mother, Mrs Y, that the Council:
• did not consult family about Mrs Y’s care;
• calculated Mrs Y’s contribution to her care wrongly and she can no longer afford to pay;
• sent invoices to Mrs Y that she was unable to open or read so she incurred a debt from not paying these; and
• did not provide them with sufficient information for them to understand its financial processes and Mrs Y’s options and did not deal properly with Mr X’s complaint about this.
2. Mr X said the “astronomical” increased cost for Mrs Y’s care came “out of the blue” and they felt they had to pay what had been demanded. This caused the family much anxiety.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended).

We are satisfied Mr X is a suitable person to complain on Mrs Y‘s behalf.

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How I considered this complaint

6. I considered information from the Complainant and from the Council.
7. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

8. The Care Act 2014 states councils have discretion to charge people for the care they receive. If a council decides to charge for care, it must complete a financial assessment. If a person refuses a financial assessment they must self-fund their care.

Financial assessments

9. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25%. The Council can take a person’s capital and savings into account subject to certain conditions. If a person incurs expenses directly related to any disability he or she has, the Council should take that into account when assessing his or her finances. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)

Capital limits

10. The capital limits, specified in regulations issued under the Care Act 2014, set the levels of capital that a person can have while qualifying for financial support from their local authority. A person with assets above the upper capital limit, currently £23,250, is responsible for the full cost of their care in a care home. A person with assets between the capital limits will pay what they can afford from their income, plus a means-tested contribution from their assets. A person with assets below the lower capital limit, currently £14,250, will pay only what they can afford from their income. For capital between a lower and the higher limit, the guidance tells councils to reduce the resident’s eligibility by one pound for every £250 in capital. This figure is fixed. A council has no discretion over whether to apply it.

Property disregards

11. When assessing how much someone can contribute to their care, local authorities must disregard their property for the first 12 weeks of permanent residential care.
12. The Care and Support Statutory Guidance says if someone enters a care home permanently, the share in their existing (main or only) home is usually considered as capital. The value is usually disregarded from the financial assessment if the person no longer occupies the home, but it is still occupied in part or whole, as their main or only home by:
• The person’s spouse, partner, former partner or civil partner
• A lone parent who is the person’s estranged or divorced partner
• The person’s relative, or member of the person’s family who is
• Aged 60 or over, or
• The person’s child aged under 18, or
• Incapacitated

Deferred payments

13. A person needing residential care can arrange a “deferred payment agreement” with a council. This allows a person to use the value of their home to help pay care home costs without having to sell it. The council pays the costs and takes a charge over the property. The debt is repaid later, usually from the proceeds of the person’s house sale.

Continuing Healthcare

14. NHS Continuing Healthcare (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. CHC funding can be provided in any setting and can be used to pay for a person’s residential nursing home fees in some circumstances.
15. NHS-funded nursing care (FNC) is the funding provided by the NHS to residential nursing homes that also provide care by registered nurses. FNC funding is set at a weekly rate.
16. A person’s local Clinical Commissioning Group (CCG) is responsible for assessing their eligibility for CHC or FNC and providing the funding.

What happened

17. Mrs Y has various health conditions which mean she is unable to talk, walk, or care for herself. In 2015, Mrs Y was placed in a care home by the local CCG under CHC. She was assessed not to have the mental capacity to make decisions about her care so was placed under a Deprivation of Liberties Safeguards (DoLS) authorisation.
18. In late 2019, Mrs Y’s condition had improved to some degree. The CCG met with the Council and family to discuss this and decided it could no longer fund her care. It agreed to continue funding the nursing element of Mrs Y’s care with FNC. Mrs Y’s family were unhappy with this, and the Council unsuccessfully challenged the decision.
19. The Council assessed Mrs Y’s finances and decided she was to pay £136.75 per week towards her care. The Council sent invoices to Mrs Y at the care home as no one had legal authority over her finances. Mrs Y’s family ensured these were paid until the end of February 2020. The Council completed a search on Mrs Y’s home and found she owned 50% as tenant in common with Mr Y.
20. In March, the care home stopped allowing visitors due to the national COVID-19 lockdown and family were unable to pick up Mrs Y’s invoices.
21. In July, staff at the care home contacted the family to say they had accidentally opened Mrs Y’s post and felt family should know about it. The care home forwarded the post to family. The most recent letter was a debt recovery letter asking for an overdue payment of £1894.09 partially or fully within 14 days.
22. Family contacted the Council and asked why it had sent the invoices to Mrs Y when she could not open them. The Council advised that it sent them to Mrs Y as she had no one with legal authority over her finances. It had not had instructions to send them elsewhere and the invoices had been paid. The Council had Mr Y noted as next of kin for Mrs Y. The family asked for a copy invoice to be sent to them in future. It was at this point that the Council became aware that Mr Y had died. As Mr Y no longer lived in the property, the Council needed to include Mrs Y’s share as capital in her financial assessment. This meant her contribution increased to £733.19 per week from January 2020. The Council checked the land registry to make sure the property remained in joint names.
23. The family complained about the increased contribution and said it would not be paid. They asked for a social worker to make arrangements for Mrs Y to return home so they could care for her. They had previously been caring for Mr Y and had not been able to care for Mrs Y as well. The Council responded and explained that the reassessment had taken Mrs Y’s property into account. It said “[Mrs Y] is now the sole owner of the property” however, Mr and Mrs Y owned 50% each and Mr Y’s share would not necessarily have passed to Mrs Y. The Council also advised the family to apply for a power of attorney if they had not already done so, but this would have needed Mrs Y’s agreement. She was not able to do this. It arranged for future invoices to go to Mrs Y at her own property address and apologised for any distress it had caused.
24. The Council asked the family about Mr Y’s share of the property and whether it, or any part of it, had passed to Mrs Y. It said it would reassess Mrs Y’s finances when it received more information. The family did not provide any information. Mr X told me the property was still going through probate so there had been no decision on this.

Was there fault which caused injustice?

25. The Council consulted the family about changes to Mrs Y’s care in 2019 when the change from CHC funding to Council funding happened. There were no further significant changes in Mrs Y’s care until Mr X’s complaint to us. I found no fault in the way the Council consulted with the family about Mrs Y’s care.
26. I also found no fault in the way the Council calculated Mrs Y’s contribution and the inclusion of Mrs Y’s property in the assessment. This was correct and the Council properly checked the status of the property. It also asked the family for more information. It has told the family it will reassess Mrs Y when it receives more information. It is likely that Mrs Y’s full cost assessment will continue until her income and assets bring her below the upper threshold. Further information about assets passed to Mrs Y from Mr Y is only likely to extend the time over which Mrs Y pays full cost for her care. It is not likely to reduce her contribution.
27. The Council sent invoices to Mrs Y as it did not have any authority to send them to anyone else. Although this is unhelpful, I do not consider the Council was at fault here. It had no reason to believe this was not a satisfactory arrangement as the invoices were paid. It was only following the unexpected impact of the COVID-19 restrictions when it became clear this arrangement was not working. I do not consider the Council should have predicted this. Once it knew of the problem, it apologised and arranged to send the invoices to Mrs Y at her home address where family would be able to deal with them. This was a satisfactory solution.
28. The Council provided the family with information about charging in 2015. I found no fault in the way the Council provided information about charging. However, by the time they complained, the family had more specific issues which the Council should have addressed more clearly. It incorrectly referred to Mrs Y as being “the sole owner of the property” and advised family to arrange a power of attorney which was not possible. These added confusion to the family’s unclear understanding of the charging as applied to Mrs Y. The Council could have provided a much clearer explanation of the property disregard and how the property had affected Mrs Y’s assessment after Mr Y’s death. It acknowledged it could have done this better and apologised. The Council responded to the family’s complaint promptly for the most part but delayed in its final review. It apologised and offered £200 for the injustice this caused. I found the Council was at fault here and caused the family uncertainty and confusion in the way it responded to their complaint.
29. As the Council has already apologised and offered a suitable remedy, I make no further recommendations.

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Final decision

30. I have completed my investigation and do not uphold Mr X’s complaints that the Council:
• did not consult family about Mrs Y’s care.
• calculated Mrs Y’s contribution to her care wrongly and she can no longer afford to pay.
• sent invoices to Mrs Y that she was unable to open or read so she incurred a debt from not paying these.
31. I do uphold Mr X’s complaint that the Council:
• did not provide them with sufficient information for them to understand its financial processes and Mrs Y’s options and did not deal properly with Mr X’s complaint about this.

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Investigator's decision on behalf of the Ombudsman