Summary: Mr X complained the Council failed to tell either he or his mother what his mother owed for client care contributions when she sold her house. Mr X complained the Council waited until after his mother’s savings fell below the upper £23,250 threshold to advise of the debt owed to the Council. The Ombudsman does not find fault with the information the Council provided to Mr X or his mother. But, the Ombudsman does find fault with the Council failing to consider the debt as part of its financial assessment. The Council agreed to the Ombudsman’s recommendation to complete a reassessment of Mr X’s mother’s finances considering the debt owed to the Council.

The complaint

1. Mr X complained the Council failed to tell either he or his mother what his mother owed for client care contributions when she sold her house in May 2019. Mr X complained the Council only told them what his mother owed two years later when her mother’s finances fell below the £23,250 upper threshold.
2. Mr X says the Council is asking for full payment of the costs which will remove most of his mother’s remaining savings and put her below the £14,250 lower threshold.
3. Mr X complained that he has spent time handling this matter causing him stress and time off work. Mr X also complained the Council lost the original cost of his Power of Attorney documents for his mother.

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The Ombudsman’s role and powers

4. 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)
5. If we are satisfied with an organisation’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 have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
7. Mr X and the Council provided comments on my draft decision which I considered before making my final decision.

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What I found

Assessment of needs

8. Councils must assess anybody in their area who appears in need of care services. Following an assessment, the Council must decide which needs are eligible for their support. If the Council provides support, it must produce a written Care Plan.
9. Where a council assesses a person’s needs and agrees to provide care, it should set a personal budget in a care and support plan. A personal budget is a statement which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, section 26)
10. A financial assessment decides who will pay for the eligible care needs. Councils can charge for care services. The Council should provide clear information about charges and how it assesses them at the time it finds out care needs. If a person refuses a financial assessment they must self-fund their care.
11. Persons who have over £23,250 of eligible capital will be expected to pay for the full cost of their care home fees. However, once their capital has reduced to less than £23,250, they only have to pay an assessed contribution towards their fees. When a person’s capital falls below the £14,250 lower threshold they will not need to contribute to the cost of their care and support from their capital. (The Care and Support (Charging and Assessment of Resources) Regulations 2014; Care and Support Statutory Guidance 2014 (CSSG))

Deferred Payment Agreement

12. The Care Act 2014, the Care and Support Statutory Guidance and the Care and Support (Deferred Payment) Regulations 2014 sets out the establishment of a universal deferred payment scheme towards the cost of care homes. Or supported living accommodation.
13. Deferred payment agreements are designed to prevent people from being forced to sell their home in their lifetime to pay for their care. By entering into a deferred payment agreement, a local authority agrees to defer the payment of charges due to it from the adult, for the costs of meeting needs in a care home or supported living accommodation.
14. The guidance notes that the payment for care and support is deferred and not “written off”. The costs of provision of care and support will have to be repaid by the individual at a later date.

What happened

15. Mr X’s mother, Ms Z, moved into a care home in August 2017. Ms Z self-funded her costs at the care home at first.
16. In June 2018, Ms Z finances fell below the upper threshold of £23,250. The Council completed a care needs assessment of Ms Z and noted that it needed to complete a financial assessment and consider a deferred payment arrangement until Ms Z sold her house.
17. On 22 September 2018, the Council wrote to Ms Z to confirm that her client care contributions for her care would be £219.39 per week from 12 June 2018. The Council said it had calculated this contribution from the information it got from the DWP and invited Ms Z to provide further information so it could complete a full financial assessment.
18. Mr X contacted the Council on Ms Z’s behalf. Mr X provided the Council with a copy of his Power of Attorney document for Ms Z in November 2018 and provided a completed financial assessment form.
19. On 11 December 2018, the Council agreed to a deferred payment arrangement for Ms Z until she sold her property. The Council also completed a reassessment of Ms Z’s finances using the information Mr X provided and decided her client care contributions should have been £224.39. The Council backdated this recalculated contribution to 12 June 2018.
20. The Council wrote to Mr X on 8 April 2019 to advise Ms Z’s client care contributions have increased to £230.74 from 1 April 2019.
21. Ms Z sold her property in May 2019. Mr X contacted the Council to advise of the sale of the property and to confirm Ms Z’s financial assets had increased above the upper £23,250 threshold. Mr X also requested return of his Power of Attorney documents from the Council on 29 May 2019.
22. On 30 May 2019, the Council wrote to Mr X. It said:
• Ms Z would now be a self-funder for her care since her capital was above the £23,250 upper threshold.
• Ms Z owed £11,700.49 for the deferred payment arrangement.
• Ms Z owed £9,853.80 in client care contributions for charges up to 14 April 2019.
• Its legal department had Mr X’s Power of Attorney documents and it would return these to him.
23. Mr X paid the £11,700.49 for the deferred payment arrangement but did not pay towards the outstanding client care contributions.
24. The Council continued to send monthly invoices to Mr X for the client care contributions until 25 June 2019 when it confirmed Ms Z owed £12,275.08 for charges up to 20 May 2019. The Council did not chase for payment of this £12,275.08 or return Mr X’s Power of Attorney documents.
25. By October 2020, Ms Z’s capital had reduced to below the £23,250 upper threshold. Mr X contacted the Council to request a financial assessment of Ms Z.
26. Mr X returned the financial assessment forms to the Council on 1 December 2020 but the Council advised it did not have enough information from Mr X. Mr X provided this further information and the Council confirmed with Mr X it would complete a financial assessment since Ms Z’s capital fell below the upper £23,250 threshold on 30 October 2020.
27. On 12 February 2021, the Council wrote to Mr X to advise of the outstanding balance owed for client care contributions from 12 June 2018 to 26 May 2019. Mr X queried the outstanding balance and asked for return of his Power of Attorney documents.
28. The Council responded to Mr X on 16 February 2021 to advise he had paid the deferred payment arrangement but not the client care contributions. The Council wrote to Mr X the following day to confirm it had completed the financial assessment and Ms Z’s client care contributions would be £248.59 per week from 30 October 2020. The Council’s financial assessment did not consider the debt owed to the Council for the previous client care contributions.
29. Mr X continued to liaise with the Council about the outstanding charges and his Power of Attorney documents. On 2 March 2021, the Council offered to pay for a new Power of Attorney document for Mr X as it could not find the document Mr X provided.
30. Mr X made a formal complaint to the Council on 22 March 2021 about the outstanding balance. Mr X said the Council failed to advise about this outstanding balance sooner and Ms Z’s capital would now fall below the lower threshold.
31. On 1 April 2021, Ms Z started to pay for her ongoing client care contributions. Ms Z had not paid for the client care contributions from 30 October 2020 to 1 April 2021.
32. The Council wrote to Mr X on 9 April 2021 to advise it had reviewed Ms Z’s financial assessments from 2019, the deferred payment arrangement and the redemption figures and it considered these accurate. The Council said Ms X now owed £16,067.99 for client care contributions up to 14 March 2021. This balance has risen to £16,610.18 because of lack of payments until 1 April 2021.

Analysis

Charges and information provided in 2018 and 2019

33. Mr X complained the Council failed to tell either himself or his mother about the client care contributions owed to the Council in 2019.
34. A council must assess a person in their area who appears in need of care services. If the Council decides a person is eligible for support and the person agrees to receive support, the Council should complete a financial assessment. The financial assessment will decide what contribution the person needs to make towards their support.
35. When the Council completed Ms Z’s financial assessment it determined Ms Z would need to pay £219.39 per week for her client care contributions backdated to 12 June 2018. The Council completed a financial assessment and confirmed this in writing to Ms Z. This financial assessment detailed Ms Z’s weekly client care contributions applicable from 12 June 2018. I do not find fault with the Council.
36. The Council agreed to cover the rest of Ms Z’s care charges through a deferred payment arrangement so Ms Z did not need to pay anything for her care until she sold her house.
37. Following completion of the first financial assessment in September 2018, the Council produced monthly invoices detailing the client care contributions. The Council produced the first invoice on 26 September 2018 and continued to provide monthly invoices until 25 June 2019.
38. The Council also confirmed to Mr X on 30 May 2019 that Ms Z owed £9,853.80 for client care contributions up to 14 April 2019.
39. Since Ms Z sold her house by 30 May 2019, the Council also confirmed the outstanding balance owed for the deferred payment arrangement. The Council did this as a separate figure in the same email referred to in paragraph 39.
40. The Council has provided Mr X with regular invoices for the client care contributions and confirmed in an email the balance owed up to 14 April 2019. While I acknowledge Mr X may have confused these charges with the deferred payment arrangement balance, this is not the fault of the Council. The Council confirmed these figures separately to Mr X in the same email.
41. Mr X should have been aware of both debts given the information the Council provided. Mr X paid the deferred payment arrangement but did not pay the client care contribution charges.
42. Both debts were valid and owed to the Council. Since Mr X has not paid for the client care contributions the charges remain outstanding. The Ombudsman cannot find the Council at fault for asking Ms Z to pay for her assessed client care contributions.

Financial assessment in 2021

43. The Council completed a further financial assessment of Ms Z on 17 February 2021. This financial assessment confirmed that Ms Z’s capital reduced below the upper threshold of £23,250 on 30 October 2020.
44. The Council considered Ms Z’s savings and her income as part of this financial assessment to calculate her client care contributions. However, the Council has not considered the debt Ms Z owed to the Council for previous unpaid client care contributions. The Council would have been aware of this debt as it contacted Mr X about this debt before completing the financial assessment. This debt was also owed to the same Council department. Failure to consider this debt as part of the financial assessment is fault.
45. By failing to consider this debt, the Council has failed to consider that Ms Z’s effective capital would have reached the upper threshold of £23,250 a few months earlier than 30 October 2020. It is also possible Ms Z’s capital could have reached the lower £14,250 threshold before 30 October 2020 had Ms Z paid the full debt owed from her client care contributions in 2019. After a person has gone below the £14,250 threshold they would not need to contribute to the cost of their care and support.
46. While Ms Z owes the debt for the historic client care contributions, the Council needs to complete a reassessment of Ms Z’s finances while considering this debt to the Council. On settlement of the historic debt, the Council can calculate the effective date Ms Z’s capital would have reached the £23,250 threshold had this been paid sooner. The Council can then recalculate the Council’s contributions to Ms Z’s more recent care.

Power of Attorney document

47. Mr X complained the Council failed to return his Power of Attorney documents for his mother.
48. Mr X sought return of his Power of Attorney documents since 29 May 2019. The Council promised to return these documents but failed to do so. This is fault.
49. The Council told Mr X it could not find the documents and offered to pay for replacement documents on 2 March 2021. I consider this was a suitable offer to make to Mr X. The Council should uphold this offer to Mr X and confirm in writing it will reimburse Mr X for the cost of a replacement Power of Attorney document. Mr X will need to provide an invoice or receipt showing the cost to Mr X for this replacement document.
50. From 29 May 2019 to 21 March 2021, the Council told Mr X it was still looking to locate the documents. This delay of 22 months is fault which caused Mr X inconvenience and stress. While this delay of 22 months is fault, the impact of this is mitigate by the fact that Mr X did not chase the Council for return of the document from 29 May 2019 until the start of 2021.

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Agreed action

51. Within one month of the Ombudsman’s final decision the Council should:
• Apologise to Mr X and pay him £150 for the inconvenience and stress caused through losing his Power of Attorney documents and failure to consider the debt owed to the Council for the previous client care contributions when completing the 2021 financial assessment.
• Confirm in writing to Mr X it will reimburse the cost of the replacement Power of Attorney document on receipt of an invoice demonstrating this cost to Mr X.
52. Within three months of the Ombudsman’s final decision the Council should:
• Confirm in writing to Mr X the balance owed up to 20 May 2019 for Ms Z’s client care contributions and provide details of how to make payment.
• Confirm that on payment of the balance owed up to 20 May 2019, it will complete a reassessment of Ms Z’s finances while considering the debt owed to the Council for client care contributions in 2018 and 2019 as if this debt had been taken from Mrs Z’s assets by 20 May 2019. This will enable the Council to calculate the correct date Ms Z’s capital would have reached the upper £23,250 threshold and lower £14,250 threshold and in turn recalculate the Council’s contributions to Ms Z’s more recent care.

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Final decision

53. There was fault by the Council and as the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman