Summary: Ms X complains the Council was at fault in the way it financially assessed her uncle, Mr Y for contributions towards care home fees. We have found no evidence of fault in the way the Council carried out a financial assessment on Mr Y, notified Ms X of the charges and pursued her for unpaid contributions as Mr Y’s attorney. So we have completed our investigation.

The complaint

1. I have called the complainant Ms X. She complains the Council is wrongly pursuing her for unpaid care home fees for her uncle, Mr Y. Ms X says the debts are the Council’s fault because it withdrew Mr Y’s housing benefit leaving him unable to pay the fees. Ms X manages Mr Y’s finances and says the Council failed to make it clear what the charges would be once Mr Y was placed in a care home. Ms X says she believed the Council would be funding his care and it failed to tell her about the debt in good time.
2. Ms X says she has suffered distress and inconvenience due to the time and trouble taken in pursuing the complaint. And is under significant stress as she now cannot afford to pay the money the Council says is owed. Ms X wishes the Council to cancel Mr Y’s debt.

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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)

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How I considered this complaint

5. I have read the papers submitted by Ms X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Charging for social care services: the power to charge

7. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)

How to assess and thresholds

8. 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)

What happened in this case

9. This section sets out the key events in this case and is not intended to be a detailed chronology.
10. Ms X is Mr Y’s niece and holds power of attorney for financial matters for him. This enables Ms X to receive money on his behalf and to make any necessary payments. Mr Y lived in extra care sheltered housing with a care package provided by the Council. In July 2019 Mr Y was admitted to hospital and then to a Step-Down unit for assessment and discharge planning. This was because it was decided Mr Y could not return to sheltered housing accommodation due to needing more support. Ms X was involved and kept informed of Mr Y’s situation.
11. In August 2019 the Council sent Ms X a financial assessment form to complete for Mr Y to assess his ability to contribute towards any care fees he may have. The form included guidance notes explaining there may be a charge or contribution towards services. This would be based on the person’s ability to pay and would be a weekly charge payable from the permanent date of admission to a care home.
12. An internal Council check list for an officer to request ‘a placement brokerage’ for Mr Y noted the Council had started the financial assessment procedure and relevant contribution policy explained to client and representative (Ms X). It recorded an officer gave the form to Ms X who agreed to complete it and send it directly to the finance team with supporting documents. Ms X completed the form and sent it to the Council with copies of Mr X’s bank statements.
13. In September 2019 Mr Y was admitted to a care home as an emergency placement as the Council decided he needed 24-hour care. The placement became permanent and chargeable after eight weeks on 1 November 2019.
14. The Council financially assessed Mr Y on 17 January 2020 and sent a letter to Ms X advising of Mr Y’s contribution towards the care home fees. The letter confirmed Mr Y’s weekly charge from September 2019 when admitted to the home. But the Council only started the charges when he became a permanent resident on 1 November 2019. The Council told Ms Y, as she was formally managing Mr Y’s finances, to pay the monthly fees when invoiced while he lived at the home until the date of discharge. The Council told Ms X to pay the first invoice for fees when sent to her. But it preferred payment by direct debit. The Council asked Ms X to complete a direct debit form and return it to the Council to set up to pay for future contributions this way.
15. The Council explained about benefits Mr Y received from the Department of Work and Pensions (DWP) and actions she may need to take. The Council explained it calculated Mr Y’s contribution from his state and occupational pension minus his personal allowance. This left a weekly contribution from Mr Y towards his fees and the Council would invoice Ms X monthly for this in arrears.
16. The Council sent Ms X the first invoice of £2954.15 for the weekly fees from 1 November 2019 to 2 February 2020. The invoice clearly stated it was a weekly contribution for Mr Y’s fees and a payment was due. The Council then sent Ms X an invoice each month for £917. 20 from 3 February 2020 onwards.
17. Ms X contacted the Council in February 2020 and told an officer Mr Y did not have finances to pay the first invoice. The officer discussed Mr Y’s contributions, invoice and charging with Ms X and noted ‘she understood’. The officer agreed to a payment arrangement of £250 a month to pay off the arrears by standing order. And that Ms X paid the ongoing monthly charges from 3 February 2020. The officer sent a repayment agreement to Ms X who agreed to the terms, signed, and returned the form to the Council.
18. The Council continued to issue Ms X with the monthly invoices for Mr Y’s contribution for his care home fees during 2020 with a warning not to ignore them. The Council sent Ms X a reminder letter for the outstanding amount in June 2020. It then suspended all its debt recovery action for about six months in 2020 to provide a breathing space due to the Covid-19 pandemic. The Council resumed debt recovery action in late 2020.
19. The Council issued reminder letters to Ms X in December 2020 to pay the charges due as it had not received any payments from her. Mr Y’s debt now stood at £11,162.40. The Council issued a further reminder letter to Ms X in January 2021 for £12,079.60. It confirmed it would take formal action to recover the debt unless she made a payment arrangement to clear the arrears.
20. Ms X contacted a finance officer about the debt in January 2021 and said Mr Y did not have the finances to pay the debt. Ms X said she had not received any reminder letters from the Council and Mr Y’s income was actually less than that used by the Council when doing the financial assessment in 2019.
21. Mr Y sadly passed away in January 2021. Ms X made appeals and complaints to the Council about paying Mr Y’s debt and sent in his bank statements for 2020 in support. In summary Ms X’s concerns were;
• The Council suspended Mr Y’s housing benefit claim in October 2019 despite her providing information it asked about his tenancy at the sheltered housing accommodation. Ms X said Mr Y had needed to use his limited savings during that time and incurred debts to buy furniture and carpets.
• Whether the Council had carried out a financial assessment to establish Mr Y had enough funds to pay the higher costs of the new tenancy at the care home. Ms X understood Mr Y’s housing benefit claim was still suspended and he was not receiving housing benefit. Ms X wanted to know why the Council had not provided Mr Y with any housing benefit he may have been entitled to which led him to incurring debts.
• Ms X was unaware the payments she was making towards the debt of £2954.15 had stopped and neither the Council nor her bank had told her. Ms X considered the Council had failed in its duty of care because it had not told her about the debt.
• The Council asked Ms X to pay the outstanding debt in three payments over three months but there were no funds to clear it as Mr Y’s bank statements for 2020 showed.

The Council’s response to Ms X’s complaints

22. The Council responded to Ms X’s appeals and complaints. It said it had discharged its duty by placing Mr Y in a care home suitable for his needs. The Council had financially assessed him in January 2020 according to guidance to determine his contribution towards the cost.
23. The Council confirmed it was paying the full cost of Mr Y’s care and he was only required to pay a contribution towards it. The fee arrears were Mr Y’s assessed contribution towards the cost of his care. The Council based the financial assessment on financial information Ms X provided in August 2019. The Council calculated Mr Y’s contribution on the state retirement pension and occupational pension he received eight weeks after admission to the care home from 1 November 2019. It did not include housing benefit as Mr Y was no longer receiving it because it was not paid to residents in residential or nursing homes.
24. Ms X referred to expenditure on furniture and carpets before Mr Y entered the care home. The Council did not consider this expenditure was reflected in the bank statements. But the financial assessment in January 2020 only considered Mr X’s income from then and not before. So, while prior expenditure may have reduced his available assets it did not affect the financial assessment.
25. The Council confirmed records showed it sent Ms X monthly invoices for Mr Y’s contributions as she was managing his affairs. The Council set up the repayment plan for Mr Y’s charges from 1 November 2019 to 2 February 2020 as Ms X did not pay the first invoice in January 2020. The Council only received a few payments towards the repayment plan, which did not clear the debt, so it remained it outstanding. Ms X had also failed to set up a direct debit and make the ongoing monthly care contributions according to the agreement she signed in February 2020.
26. The Council sent Ms X a reminder letter for the outstanding balance in June 2020 and accepts it should have revisited the agreement then as it failed. But it suspended debt recovery action for six months during the Covid-19 pandemic. It contacted Ms X in December 2020 after restarting recovery action to set up a payment plan to clear the arrears.
27. The Council reviewed Mr Y’s bank accounts in February 2021 following Ms X’s complaints. These showed Mr Y receiving his monthly benefits from the DWP. But there were also regular transactions on hotels, fast food, supermarket purchases, high premium insurance, and withdrawals of hundreds of pounds of cash. The Council considered this expenditure not in line with Mr Y’s care plan for the residential home. And Ms X has been unable to explain these transactions.
28. The Council said while Ms X set up a standing order to pay the £250 a month the October and November 2019 amounts were returned to Mr Y’s bank account. The Council noted most of his benefits were spent in other ways and not on his care fee when he was only allowed £24.90 a week for personal expenses. The Council considered Ms X liable to clear the outstanding debt on the account as she had spent more than Mr Y’s personal allowance. This was because she had not paid Mr Y’s contribution after receiving his benefits from the DWP.
29. The Council considered Ms X had failed to manage Mr Y’s bank account properly and neglected to pay his fees. And she had consistently failed to make the necessary arrangements to pay Mr Y’s contribution towards the cost of his care as advised by the financial assessment. The Council said it may have dealt with this as a safeguarding issue if Mr Y’s place had been put at risk.
30. The Council listed out all the invoices raised and amounts unpaid. It asked Ms X to provide evidence if she considered some amounts paid were not showing. The Council asked Ms X to settle the account now standing at £13,586.43 and it was willing to discuss a payment plan.

My assessment

31. Ms X says the bank statements she sent to the Council in August 2019 did not reflect Mr Y’s finances at the time. However, I consider it was Ms X’s responsibility as Mr Y’s attorney to ensure she provided the Council with Mr Y’s correct information for the financial assessment. The Council confirmed that any issues with prior expenditure did not affect the financial assessment. This was because it only considered the income Mr X received while at the care home which was his state and occupational pension. The Council did not take into account Mr Y’s housing benefit as it had been stopped because he was a permanent resident in a care home. There is no evidence of fault by the Council in the way it carried out the financial assessment in January 2020.
32. If Ms X considered there were issues with Mr Y’s housing benefit before he became a permanent resident in the care home, then it was open to her to have pursued this in 2019. Ms X could have used the appeal rights available to her if she disagreed with decision on the amount of housing benefit Mr Y received or the decision to suspend the claim.
33. The Council’s records show Ms X was kept informed and involved in discussions about Mr Y’s care in 2019. The documents show officers told her about possible contributions towards care fees. The financial assessment documents also fully explained the costs, contributions, and Ms X’s responsibility to make the payments on Mr Y’s behalf. The evidence provided does not show Ms X took the action requested including setting up a direct debit to enable the Council to collect the payments due.
34. Ms X discussed the first invoice with an officer in January 2020, agreed to pay the arrears and to make the necessary ongoing monthly payments. While Ms X set up a standing order only a few payments were made. As Mr Y’s attorney it was Ms X’s responsibility to check the regular payments were made and to manage his finances.
35. Ms X complains the Council did not tell her about the increasing debt. The Council’s documents show it issued monthly invoices to Ms X from February 2020 to January 2021 when Mr X died. The Council accepts it did not follow up the June 2020 reminder letter because it had suspended debt recovery during the Covid-19 pandemic. The decision to suspend debt recovery is one the Council was entitled to make because of the particular circumstances in 2020.
36. It is unfortunate the Council did not contact Ms X about the increasing debt after June 2020 until December 2020. But I do not consider this was fault by the Council. This is because it was sending Ms X the monthly invoices to alert her to the contributions needed towards Mr Y’s care. Ms X had also signed an agreement to pay off the arrears in February 2020 and to make regular ongoing monthly payments. So, I am satisfied Ms X was aware of the debt and her ongoing obligations. It was Ms X’s responsibility to manage and check regular payments were being made towards Mr Y’s contribution from his bank account.
37. Ms X does not consider the Council should pursue her for Mr Y’s debt. The Council has explained its reasons for do so. This is because it does not consider Ms X has properly managed Mr Y’s bank account and used the benefits he received on unwarranted expenditure. While I appreciate the distress the Council’s decision has caused Ms X it is one the Council is entitled to make as Ms X was acting as Mr Y’s attorney. There is no evidence of fault in the way the Council has reached its decision as it has fully explained to Ms X the reasons for considering her liable.
38. The Council has advised Ms X to send evidence of any payments made towards Mr Y’s fees if she does not consider they are showing in the account information it has provided. Ms X also may wish to explain to the Council about expenditure from Mr Y’s account during 2020 it says is unnecessary, to enable it to reconsider its decision. The Council has also offered to agree a repayment plan with Ms X for the outstanding debt. I consider this is suitable action for it to take in view of Ms X’s alleged difficulties in repaying the debt.

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Final decision

39. I am completing my investigation. There is no evidence of fault by the Council in the way it carried out a financial assessment on Mr Y, notified Ms X of the charges and pursued her for unpaid contributions as Mr Y’s attorney.

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Investigator's decision on behalf of the Ombudsman