Summary: Mrs X, on behalf of her mother Mrs Y, complained about the delay in setting up a deferred payment arrangement and the Council’s failure to make payments to the care home as agreed. The Council gave unclear information about when it would progress the application for the deferred payment arrangement, failed to pay the care home as agreed, delayed in responding to Mrs X’s complaint and failed to review the payment issues within the timescale stated. A suitable remedy for the injustice caused by these faults is agreed.

The complaint

1. Mrs X, on behalf of her mother Mrs Y, complained about the way the Council dealt with the financial arrangements when her mother moved into a care home. She particularly complains about the delay and lack of professionalism in the setting up of a deferred payment arrangement and its failure to make payments to the care home as agreed. Mrs X also complains about the way the Council handled her complaint and that it failed to complete an internal review and inform her of the outcome.
2. Mrs X says this had a significant emotional and financial impact on her and her family.

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The Ombudsman’s role and powers

3. 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)
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)

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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

6. Councils can make charges for the care and support services they provide or arrange. Charges may only cover the cost the Council incurs.
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 law states that people who have over the upper capital limit (£23,250) are expected to pay the full cost of their care. They are known as self-funders. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
9. The Council 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.
10. Mrs X’s mother, Mrs Y, was admitted to a care home in 2020. The Council arranged the placement so it was directly liable to the care home for the fees; it could then recover any contribution due from Mrs Y.
11. For the first 12 weeks of the placement the Council had to disregard the value of Mrs Y’s house; as a result Mrs Y’s capital fell below the upper capital limit so she did not pay the full amount of her care costs. The Council assessed Mrs Y’s finances and decided she should pay a client contribution of less than £150 per week with the remaining cost met by the Council. Once the disregard ended however Mrs Y would have to pay the full cost of her care.
12. Mrs X and her family decided to rent out Mrs Y’s property to maximise her income and sustain the funding for the care home placement as long as possible. Mrs X contacted the Council and asked for a DPA. Under a DPA the service user pays a contribution towards the care home costs based on what they can afford from their savings and income. The Council pays the remaining cost and places a “legal charge” on the service users property which is a guarantee the Council will get its money back.
13. The costs of setting up the DPA and placing the legal charge on the property are paid by the service user. The Council’s website states the costs as an initial set up fee of £559.41 and a property evaluation charge of £282.45.
14. The information provided shows the social worker completed the DPA forms in June 2020. Mrs X had employed a solicitor and email from the Council to the solicitor said the DPA would be progressed once the power of attorney was received. Mrs X emailed the Council on 17 July informing it the power of attorney had been registered. Mrs X asked for the DPA to be progressed.
15. The Council did not progress the DPA until 7 September which was at the end of the 12 week disregard period. The information provided by the Council shows that once the DPA application process began, it progressed it without any delay. On 7 November 2020, Mrs X notified the Council that Mrs Y had died and requested a stop to the DPA application process.
16. Mrs X was concerned the care home had not received any payment from the Council for the cost of her mother’s care from 2 September when the 12 week disregard period ended. She informed the Council and it agreed to resolve the situation with the care home but she says it did not pay the fees. Mrs X says she felt concerned the home had not received the money for the care it provided to Mrs Y and so she made a payment of £9750 directly to the care home.
17. Mrs X complained to the Council about the way it had dealt with her mother’s placement and the care charges. She said she was left with the impression of incompetence and lack of accountability. She said the Council failed to honour the agreement to pay the costs from 2 September while the DPA was being set up and to set up the DPA once the power of attorney was in place. Mrs X also complained that she had paid the full cost for the DPA which was never completed.
18. In response to her complaints the Council carried out an investigation and produced a complaint report. It partially upheld Mrs X’s complaint about the administration of the DPA. While it said it had a published policy which stated it would not start the DPA application process until after the first 12 weeks of residential care, it accepted the email sent in June 2020 to Mrs X’s solicitor may have confused the matter. It accepted this email led Mrs X to believe the DPA application process would start when the power of attorney was registered.
19. The Council did not uphold Mrs X’s complaint about delay in the DPA application process. It says the timeline from the point of referral to its finance team does not support the claim it was not progressed in a timely manner or that she did not get the service she paid for.
20. Mrs X also complained about the payments to the care home. She said the Council had told her solicitor that it would make interim payments to the care home while the DPA was being processed. The Council said it had set up a bank payment to the care home for Mrs Y’s care but on contacting the care home it said it had not received any money after the initial 12 week period. The Council said it would conduct an internal review into this matter to find out why the payments were not received by the care home. It said this review would be completed within four weeks and the outcome would be communicated to Mrs X.
21. The Council apologised to Mrs X for the delay in dealing with her complaint and offered a payment of £250 as a goodwill gesture. It said it did not consider the full £841.46 fee for the DPA should be refunded.
22. Dissatisfied with this outcome, Mrs X complained to the Ombudsman.

Analysis

23. Mrs X complains about the way the Council dealt with the financial arrangements when her mother moved into a care home. She particularly complains about the delay and lack of professionalism in the setting up of a deferred payment arrangement and its failure to make payments to the care home as agreed.
24. The Council’s investigation partially upheld the complaint about the setting up of the DPA. The email from the Council in June 2020 to Mrs X’s solicitor said the process would start when the power of attorney was received. I have not seen any evidence which suggests the Council told Mrs X or her solicitor that the DPA application process would not begin until the end of the initial 12 week placement in September 2020. While I note the Council has a policy stating this and giving a clear explanation of why it does not begin the DPA application process before this time, there is nothing to suggest Mrs X ever saw this policy. The failure to be clear about the start date for the DPA application process was fault.
25. However, I am not persuaded this fault caused Mrs X a significant injustice. I accept it was frustrating and that it was a difficult time because her mother’s health was declining. If the Council had started the process sooner then it may have completed it and registered the charge on the home. The Council has offered Mrs X a partial refund of the DPA fee which would not have happened if the process had been completed.
26. Mrs X considers the Council should refund the full cost of the DPA. In response to my enquiries, the Council has provided an explanation of how it calculated the cost in 2015 when The Care Act was introduced. Having considered the actions taken, and that I find no delay once the Council started the DPA process, I am satisfied the £250 already offered to Mrs X is an appropriate amount for the fault in this matter and reflects the proportion of the work that was not carried out.
27. Mrs X says the Council agreed to meet the costs of the care home from 2 September until the DPA was completed. The care home says it did not receive any payments for the nine weeks of care provided to Mrs Y from 2 September until her death in November. Mrs X acknowledges this money would need to be paid from Mrs Y’s estate. She says that after notifying the Council Mrs Y had died, she signed a form confirming the money would be paid to the Council. However, when she found out the care home had not received any money from the Council she felt under pressure and so took out a loan and paid almost £10,000 to the care home directly.
28. I am investigating the actions of the Council. There is nothing to suggest it ever told Mrs X to pay the care home directly or that it put any pressure on her to do this. The contract for the care was between the Council and the care home and so it was the Council’s responsibility to make the payment. The decision to make the payment to the care home was Mrs X’s. I note the Council said it would investigate what happened regarding the payments and in response to Mrs X’s complaint in March 2021 it said this would be completed within four weeks. This review has still not been completed and the Council says the stated four week timescale was not realistic. It has not given any indication of when this review will be completed. I also note the Council has not updated Mrs X regarding this delay, the reasons for it and when the matter will be completed.
29. On balance, I take the view the Council did not make the payments to the care home from 2 September as it said it would. This is fault. While I appreciate it caused Mrs X distress to learn the care home had not been paid for the care it provided to Mrs Y, there was no obligation on her to pay the home when she did. I do not consider she suffered a significant injustice as a direct consequence of the fault by the Council. However, the continued delay by the Council in reviewing the issues in this case and notifying Mrs X has caused avoidable distress and the Council should now use its best efforts to bring this matter to a conclusion.
30. Mrs X also complained to the Council about its delay in dealing with her complaints. The Council did not respond to the stage one complaint until 44 working days after it was submitted. It says this was due to an error in how the complaint was assigned. The time taken to deal with the complaint was too long and caused further distress to Mrs X.

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Agreed action

31. To remedy the injustice caused as a result of the fault identified in this case the Council, within four weeks of my final decision, will:

• Apologise to Mrs X for the faults identified in this statement;
• Pay Mrs X £150 to recognise the avoidable distress and time and trouble as a result of the delays and miscommunications in this case;
• Pay Mrs X the £250 previously offered;
• Provide an update to Mrs X regarding the review saying when it expects to complete it. The Council should also continue to update Mrs X on a monthly basis until the matter is resolved;
• Ensure the information it provides to service users and their families about DPA’s are up to date and clear regarding timescales; and
• Remind staff to be clear in their communications with service users and their families about processes and timescales to prevent miscommunication.

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Final decision

32. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman