Summary: Mrs X complained about how the Council carried out a financial assessment for her mother, Mrs Y. There was fault with how the Council and its provider gave Mrs X appropriate information and advice about care charging and in how it treated Mrs Y as a temporary care home resident when she was not. The Council agreed to apologise to Mrs X for the avoidable frustration and uncertainty this caused her and pay a financial remedy. It also agreed to review its procedures.

The complaint

1. Mrs X complained about how the Council carried out a financial assessment for her mother, Mrs Y, after she asked for help with her care costs in September 2020. She said the Council:
1. failed to properly explain the rules about how Mrs Y’s property would be treated;
2. wrongly treated her mother as a temporary care home resident;
3. sent incorrect invoices and reminders, including to Mrs Y after it agreed to only send these to Mrs X; and
4. failed to respond to her emails or phone calls.
2. Mrs X said this caused both her and Mrs Y distress and Mrs X had to spend a lot of time complaining. Had the Council told her about the effect of her mother’s property, Mrs X said she would have been able to sell this sooner. She wanted the Council to recognise it got the first assessment wrong, apologise and improve its processes.

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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. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. 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

6. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided;
• relevant law and guidance; and
• the comments I received about my first draft decision.
7. Mrs X and the Council had an opportunity to comment on my draft decisions. I considered their comments before making a final decision.

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What I found

Financial assessments

8. The Care Act 2014 provides a single legal framework for charging for care and support under sections 14 and 17. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 (‘the regulations’). Councils should also have regard to the Care and Support Statutory Guidance (‘the guidance’).
9. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
10. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person is entitled to access council support to meet their eligible needs. People who have over the upper capital limit are expected to pay the full cost of their residential care home fees.
11. The regulations say that, when undertaking a financial assessment, the Council must take into account the whole of the person’s capital, unless the rules say any capital should be disregarded. The person’s main or only home can be disregarded for several reasons, including;
• while they are a temporary resident in a care home; and
• for 12 weeks after they become a permanent resident in a care home.
12. Someone is a temporary resident if their stay in a care home is unlikely to exceed 52 weeks (or in exceptional circumstances, unlikely to significantly exceed this).

Information about care charging

13. Section 4 of the Care Act 2014 says councils must arrange to provide information and advice about care and support to people in their area who need it. This includes information and advice about assessment, charging and deferring care charges, as well as how to access independent financial advice.
14. The guidance says councils have several opportunities to provide, or signpost people to information and advice. This includes at the first point of contact and when undertaking a financial assessment.
15. The guidance also says that where a council identifies someone might benefit from, or be eligible for, deferring the costs of their care, it must tell them about the schemes available at the earliest appropriate opportunity.

What happened

16. Mrs Y had lived in a care home for around three years, during which time she had been paying the fees herself because her savings were above the ‘upper capital limit’. Mrs Y also owned a share of her former home, which was jointly owned with her daughter, Mrs X, and rented out to tenants.
17. In July 2020 Mrs X approached the Council on behalf of Mrs Y for help with her care fees. At this time, Mrs Y’s savings were still significantly above the upper capital limit, so the Council refused to assess Mrs Y. It told Mrs X to contact the Council again when Mrs Y’s savings were lower.
18. Mrs X contacted the Council again in September 2020, at which point the Council agreed to assess Mrs Y’s finances to work out what help she might be entitled to.
19. The Council has an arrangement with an outside company, Company B, to carry out the financial assessments on its behalf.
20. In late September 2020, the Council agreed to fund Mrs Y’s current care home fees on what it called a ‘non-prejudicial basis’. Company B sent forms asking for Mrs Y’s financial information to Mrs X in October, who returned them a few weeks later. In the forms, Mrs X declared Mrs Y’s interest in a property worth more than £500,000.
21. In November 2020, Company B completed its financial assessment. It says it treated Mrs Y as a ‘temporary resident’ because it was funding her care on a ‘non-prejudicial basis’. This meant it ignored the value of Mrs Y’s property under the rules for temporary residents and took into account her rental income instead. The assessor noted “for future assessments [Mrs Y] has been self-funding since 2018 so property disregard would not be applicable”. In its letter to Mrs X about the assessment, Company B referred to Mrs Y’s “period of short-term care”.
22. In late 2020 and early 2021, the Council sent Mrs Y several invoices and reminders for her assessed contribution to her care fees. Mrs X complained to Company B that it should have sent the invoices to her instead. Company B apologised and said it would ensure future correspondence went to Mrs X.
23. Records provided by the Council show that a staff member queried the treatment of Mrs Y’s property in January 2021. However, this was not investigated further. Company B also reassessed Mrs Y in January 2021, when Mrs X clarified Mrs Y owned less than half of the property. However, Company B again treated Mrs Y as a temporary resident and disregarded her interest in the property.
24. After Mrs X raised more queries with Company B in February 2021, a member of staff explained that because Mrs Y owned her property, she would still have capital above the upper capital limit. It wrote to Mrs X in March 2021 to confirm Mrs Y would need to pay the full cost of her fees.
25. Mrs X complained that the Council and Company B had not told her sooner about how Mrs Y’s property would affect her eligibility for help. She said that, had she known about this earlier, she could have sold the property sooner.
26. Mrs X and Mrs Y did not want to use either of the deferral options available. Instead, the Council agreed to continue funding Mrs Y’s care placement until the property was sold and to defer collecting Mrs Y’s temporary contribution from her. After the property was sold Mrs Y would again pay her own fees and would pay any outstanding contribution due to the Council from the proceeds of the sale.
27. However, while the property was being sold, Mrs X said the Council continued to send invoices and reminders for Mrs Y’s contribution. Mrs X complained about this several times and Company B assured her that it would put the reminders on hold. However, it continued to send reminders up to June 2021.
28. As of early 2022, Mrs X and the Council are arranging to settle Mrs Y’s fees from the sale of the property.

My findings

Information about the treatment of Mrs Y’s capital

29. The Council has not provided any evidence that it, or Company B, either provided Mrs X with, or directed her to, appropriate information and advice before March 2021.
30. The evidence shows there were several earlier opportunities to do this, including when:
• Mrs X first contacted the Council in June 2020;
• Company B started its financial assessment in September 2020;
• the assessor first noted that the 12-week disregard would not apply to Mrs Y;
• a staff member queried the treatment of Mrs Y’s property in January 2021; and
• Company B reassessed Mrs Y later that month.
31. The evidence shows Company B and the Council missed all these opportunities to either provide or direct Mrs X to information and advice about care charging. This was fault.
32. The Council and Company B also failed to inform Mrs X about the deferral options available to Mrs Y as soon as it was aware Mrs Y owned a property with significant equity. This was also fault.

Financial assessments

33. At first, Company B treated Mrs Y as a temporary resident of her care home. However, it was aware from the outset that Mrs Y had lived at the care home for around 3 years. Therefore, it should have realised that Mrs Y did not meet the definition of a ‘temporary resident’. There is no provision in the regulations to ‘treat’ someone as a temporary resident when they are not.
34. The Council said, in its complaint response to Mrs X, that it will pay for care on a non-prejudicial basis where the longer-term funding arrangements are unclear. However, it was clear from the outset that Mrs Y owned a property and was not a temporary resident. Therefore, the Council, or Company B acting on its behalf, should have realised in late 2020 that Mrs Y would have capital of more than the upper capital limit, so would not be entitled to any help with her fees.
35. As with providing information and advice to Mrs X, the Council missed many of the same opportunities to realise Mrs Y would have too much capital. I am satisfied its failure to do so was fault.
36. Mrs X said, had she known sooner about the possible need to sell the property to cover Mrs Y’s care fees, she could have taken advantage of a temporary reduction in stamp duty, and would have got a better price. I cannot say what would have happened if Mrs X had marketed the property sooner, but the evidence shows she did miss most of the temporary stamp duty reduction period due to the delays. Given the value of the property, I am satisfied there is a remaining uncertainty about what the sale price would have been.
37. Mrs X also said that, because of the errors in the first financial assessment, Mrs Y had to go through two social care needs assessments to decide whether she could stay in her current care home. I accept this caused both Mrs Y and Mrs X avoidable distress and uncertainty over whether Mrs Y would be able to remain where she had been living for the last 3 years. I am satisfied that had Company B told Mrs X at the outset that Mrs Y would not be entitled to help with her care costs, this uncertainty would have been avoided.

Invoices and reminders

38. The evidence shows the Council sent the first invoices for her contribution directly to Mrs Y at the care home, despite agreeing with Mrs X that it would send all invoices to her. This was fault.
39. When Mrs X first realised this, she asked Company B to send future invoices to her. The records show Company B asked the Council to update the invoice address shortly after Mrs X asked it to.
40. Unfortunately, the Council sent a further invoice and second reminder between Mrs X’s request and when it updated its records. All correspondence from February 2021 was sent to Mrs X. I am satisfied Company B and the Council acted promptly after Mrs X alerted it to the problem and that the further invoice and reminder was a case of unfortunate timing.
41. While the Council sent invoices directly to Mrs Y at first, Mrs X said that this did not cause Mrs Y significant distress since Mrs X was able to reassure her. The Council apologised to Mrs X for sending the first invoices and reminders to Mrs Y and I am satisfied that was a suitable remedy.
42. In its response to her complaint, Company B accepted she was still sent reminders for invoices after it had agreed to stop these. In the circumstances, I accept this caused Mrs X significant extra frustration.
43. Since the Council is now working with Mrs X to settle the amounts owed. I have not investigated the accuracy of any invoices the Council sent, as this matter is still being considered by the Council as of early 2022. If Mrs X is not happy with how this process is done, she will be able to complain about this separately.

Contact with the Council / Company B

44. Mrs X said she had significant difficulty contacting Company B by phone. She told it she had tried calling up to 40 time over several days without an answer. She also said that due to her work, she could not always answer her phone and that she wanted Company B to call her back instead of leaving messages.
45. I cannot say how many times Mrs X tried calling Company B without success. The evidence shows it did respond to Mrs X’s emails and messages, called her on several occasions and there were no significant periods during which it failed to contact her. I do not consider it was unreasonable for Company B to leave messages for Mrs X when she was not available. I accept that not being able to speak to someone was a significant source of frustration for Mrs X, however I am not satisfied there was fault in how long Company B took to reply to Mrs X’s calls or emails.

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Agreed action

46. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of Company B, I have made recommendations to the Council.
47. Within one month of my final decision the Council will:
• apologise to Mrs X for not providing or directing her to the appropriate information and advice about care home funding or deferral options at the earliest opportunity;
• pay Mrs X £350 to recognise the avoidable uncertainty and frustration caused by the delays and errors in assessing Mrs Y’s capital; and
• apologise to and pay Mrs Y £150 to recognise the avoidable distress and uncertainty caused by having to undergo two assessments of her needs.
48. Within three months of my final decision the Council will:
• review the approach it, or Company B on its behalf, takes to financial assessments to ensure the correct capital rules are applied and people are provided with, or directed to, appropriate information and advice at the earliest opportunity, even if funded on a ‘non-prejudicial basis’;
• review its process for recording to whom invoices and correspondence should be sent, to ensure letters and invoices are sent to the correct person; and
• review its systems for placing mail (including invoices and reminders) on hold to ensure that where it agrees to suspend sending mail, appropriate holds are put in place.

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Final decision

49. I have completed my investigation. There was fault with how the Council and its provider gave Mrs X appropriate information and advice about care charging and in how it treated Mrs Y as a temporary care home resident when she was not. The Council agreed to apologise to Mrs X for the avoidable frustration and uncertainty this caused. It also agreed to review its procedures.

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Investigator's decision on behalf of the Ombudsman