Summary: Mr B complained about how the Council handled his late mother’s care costs and its decision to include her share of a property when calculating her contribution towards the costs resulting in him receiving a larger than expected bill. We found no fault on the Council’s part.

The complaint

1. Mr B complains about how the Council handled his late mother’s care costs and its decision to include her share of a property when calculating her contribution towards the costs resulting in him receiving a larger than expected bill.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have considered all the information provided by Mr B, made enquiries of the Council and considered its comments and the documents it provided.
5. Mr B 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

Legal and administrative background

Charging for permanent residential care

6. The Care Act 2014 provides a single legal framework for charging for care and support under sections 14 and 17. It enables a council to decide whether to charge a person when it is arranging to meet a person’s care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
7. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person has to pay towards the cost of their residential care.
8. 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. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.

Deferred payment agreement

9. People who own their own home can use the value of their property to pay for their residential care fees through a deferred payment agreement (DPA) with their local council. A DPA is a long-term loan secured against the person’s home. Under the agreement the council will pay the care home costs and the loan will be repaid when the person chooses to sell their home or after their death.

NHS continuing healthcare (NHS CHC)

10. NHS CHC is a package of ongoing care arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in the national framework for NHS continuing healthcare and NHS funded nursing care. Such care is provided to people aged 18 years or over to meet needs arising from disability, accident or illness.

NHS funded nursing care

11. NHS Funded Nursing Care (FNC) is the funding provided by the NHS to care homes providing nursing, to support the cost of nursing care delivered by registered nurses. If a person does not qualify for NHS Continuing Healthcare, the need for care from a registered nurse must be determined. If the person has such a need and it is determined their overall needs would be most appropriately met in a care home providing nursing care, then this would lead to eligibility for NHS FNC.

Key facts

12. In January 2016 Mr B’s late mother, Mrs X, moved into permanent residential care following a care needs assessment. Mr B completed a financial assessment form in February 2016.
13. In April 2016 the Council completed a financial assessment. Mrs X’s property was disregarded because her husband, who jointly owned the property, was living there. The Council sent a letter to Mr B enclosing details of Mrs X’s contribution towards the costs of her care. The letter stated “this assessment currently disregards the property that you own and so it is not taken into consideration. However, your interest in the property has been noted and if the property is sold or anyone moves in or out of the property you must inform us as this may affect your charges”. The Council issued the first invoice for Mrs X’s contribution towards her care charges based on the full financial assessment.
14. In March 2017 the Council sent Mr B an annual financial assessment update letter. This set out Mrs X’s updated contribution towards the cost of her care.
15. In April 2017 the Council replied to an email from Mr B advising about payments to the home and explaining that the property had been disregarded in the assessment.
16. In May 2017 Mrs X moved to a nursing home as the residential home had decided it could no longer meet her needs. The NHS carried out an assessment to decide whether Mrs X qualified for CHC funding. It decided she did not qualify for CHC funding but did qualify for FNC. The Council wrote to Mr B on 31 May 2017 explaining that, despite the change of accommodation, Mrs X was only eligible for FNC.
17. In August 2017 Mr X died.
18. In December 2017 the Council was informed of Mr X’s death. In light of this new information the finance team issued a new financial assessment form. Mr B returned the completed form.
19. In March 2018 the Council issued a revised financial assessment to reflect the change of circumstances. It sent a letter to Mr B explaining that the property would now be included in Mrs X’s financial assessment so she was now required to pay the full costs of her care and this would be backdated to the date of Mr X’s death. It also provided details of the deferred payment scheme.
20. Mr B advised the Council that Mrs X was awaiting an assessment for CHC funding. He also said his late father’s share of the jointly owned property had passed to him on his father’s death and not to Mrs X. No further payments were made by Mr B.
21. Mrs X died in May 2018. The Council wrote to Mr B offering condolences and enclosing a final statement in respect of her contribution towards the costs of her care.
22. In July 2018 the charging team received a letter from Mr B returning the invoice and advising that Mrs X had been eligible for FNC payments from May 2017. The charging team responded explaining that the invoice was still payable because FNC was separate to care charges and the charges would only be reduced if Mrs X had been in receipt of CHC funding.
23. In August 2018 the charging team issued a debt letter. Mr B responded explaining that he was appealing the NHS’s decision on CHC.
24. In January 2019 Mr B wrote to the charging team again advising that he was appealing the CHC decision.
25. In January 2020 the charging team referred the debt to the debt recovery team because of non-payment.
26. In October 2020 the case was referred to legal services for debt recovery. Correspondence then ensued between legal services and Mr B.
27. In March 2021 the Council sent a letter of claim to Mr B.
28. In April 2022 the Council amended the financial assessment to include a 12 week property disregard for the period August to November 2017. It wrote to Mr B explaining that the property was disregarded while Mr X was living there but, following his death, Mrs X’s interest in the property was included as an asset valued over £23,250 and so the full cost of her care was applied. However, in accordance with the Care and Support Statutory Guidance, the property should have been disregarded for the first 12 weeks. So, the Council had retrospectively applied a 12 week disregard and reduced Mrs X’s charges for that period.

Analysis

29. I find no fault on the Council’s part. It was entitled to include Mrs X’s share of the jointly owned property when calculating her contribution towards the cost of her care following Mr X’s death. It was also entitled to backdate the increased payments to the date of his death.
30. The Council acted correctly by disregarding Mrs X’s interest in the property at the outset because, at the time, it was Mr X’s residence. But, following his death, Mrs X’s interest in the property became capital which the Council was entitled to take into account in calculating her contribution towards the costs of her care. From that date, Mrs X’s capital was above the upper capital limit of £23,250 so she was required to pay the full costs of her care.
31. The evidence shows the Council informed Mr B at the outset about financial contributions and the deferred payment scheme. In Mrs X’s assessment dated 12 January 2016 the social worker stated, “Gave son leaflets on Entering a residential or nursing care home, The deferred payment scheme, Choice of residential accommodation and third-party contribution “top ups”, Eligibility for care and support, Charges for social care and support received in the community plus the charging letter. Discussed that the residential home does not charge a top up but she will be financially assessed to determine if she is eligible to make a contribution towards her care. Her finances are managed by her son and husband and there is no power of attorney”.
32. Mr B completed a financial assessment form in February 2016. In signing the document, he confirmed he would notify the Council of any changes in Mrs X’s circumstances as and when they occurred. The form also stated that, if the person completing the form failed to do so, the Council would backdate the amended charge. Mr B was therefore aware of this.
33. In April 2016 the Council completed a financial assessment and wrote to Mr B explaining that the property was currently disregarded but that Mrs X’s interest in it had been noted and, if the property was sold or anyone moved in or out, the Council must be informed as this may affect her charges. Mr B was therefore aware of this.
34. As the Council was not aware of Mr X’s death and the consequent change in Mrs X’s financial situation until March 2018, it was entitled to backdate the increase in her contribution to the date of Mr X’s death.
35. When Mrs X died her share of the property formed part of her estate. So, her estate became responsible for payment of the debt.

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Final decision

36. I do not uphold Mr B’s complaint.
37. I have completed my investigation on the basis that I am satisfied with the Council’s actions.

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Investigator's decision on behalf of the Ombudsman