Summary: Mr X complained the Council told him it would not charge for his mother’s residential care charges and then reversed its position 18 months later. Mr also X complained when the Council told him about his mother’s residential care charges he had already disbursed the capital from the sale of his mother’s property. We found fault with the Council for the delays in telling Mr X about the care charges and its decision about deprivation of assets. The Council agreed to our recommendation to remove the full care charges from 18 February 2017 to 9 October 2017 and reduces the care charges by half from 10 October 2017 to 24 May 2018. The Council also agreed to review its decision about deprivation of assets.

The complaint

1. Mr X complained the Council told him it would not charge for his mother’s residential care charges and then reversed its position. Mr X says the Council did not provide him with any invoices for the care charges for 18 months.
2. Mr X complained when the Council told him about his mother’s residential care charges he had already disbursed the capital from the sale of his mother’s property.

Back to top

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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)

Back to top

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 provided comments on my draft decision which I considered before making my final decision.

Back to top

What I found

What happened

8. Mr X’s mother, Ms Z, had a fall and entered hospital in November 2016. The Council assessed Ms Z and decided she needed respite care following release from hospital.
9. Mr X was acting for Ms Z as she lacked capacity to make her own decisions. Mr X met Ms Z’s social worker and signed a form on 2 December 2016 confirming he had received a copy of the Council’s factsheet for residential services.
10. Ms Z entered a care home on 14 December 2016 for respite care. On 21 January 2017, the Council completed a care assessment of Ms Z and confirmed Ms Z could not return home and would need to remain in the care home under residential care.
11. Mr X spoke with Ms Z’s social worker about Ms Z’s budget for her residential care. On 24 March 2017, Ms Z’s social worker wrote to Mr X and said “I am writing to confirm that the budget for Ms Z’s long-term placement in the residential home has been authorised”.
12. The Council wrote to Mr X on 7 April 2017 to confirm the final charges up to 20 January 2017 left £709.52 outstanding for Ms Z’s respite care. Mr X settled the respite care charges and spoke with the Council on 10 April 2017 who told him it would conduct a full assessment for Ms Z’s residential care.
13. The Council did not complete a financial assessment or send any invoices to Mr X or Ms Z.
14. Mr X sold Ms Z’s property in July 2017. Following sale of the property, Mr X disbursed the remaining sale funds, slightly over £110,000, to relatives.
15. Mr X spoke with the Council on 9 October 2017 about Ms Z’s finances. Mr X told the Council about the sale of Ms Z’s property and told the Council he believed the Council was fully funding Ms Z because of the email on 24 March 2017. The Council told Mr X that Ms Z needed to contribute to the cost of her care and Mr X should not have disbursed the funds from the house sale. Mr X sent the Council a copy of the email from 24 March 2017.
16. The Council did not complete a review of Ms Z’s charges until May 2018. On 19 May 2018 the Council decided that Mr X had disbursed the capital from the house sale “in the knowledge that this would have an impact on charging”.
17. The Council wrote to Mr X on 24 May 2018 to advise it would shortly issue the full invoices for charges since 21 January 2017 totalling £35,188. The Council said it believed Mr X would have been aware Ms Z needed to pay for care because of the factsheet it provided in December 2016.
18. Mr X contacted the Council on 29 May 2018 to confirm he received the factsheet in December 2016. Mr X said the information he received in March 2017 led him to believe the Council was funding the care despite this.
19. The Council issued the first invoices for care on 14 June 2018 detailing all charges from 21 January 2017 to 10 June 2018 totalling £35,188.42.
20. Mr X contracted solicitors to act on his behalf in August 2018 who have liaised with the Council about the balance owed since this time.
21. In February 2020, Ms Z passed away.
22. The Council completed a backdated financial assessment on 27 August 2020 to review the full outstanding care costs. The Council’s backdated assessment reduced the balance owed. The Council wrote to Mr X on 2 September 2020 to confirm the final balance owed was £65,795.78.
23. Mr X and his solicitors again continued to liaise with the Council about the balance owed.
24. Mr X made a formal complaint to the Council on 25 June 2021. Mr X said:
• He received misleading information from the social worker which led him to believe the Council was funding Ms Z’s care.
• While he received the factsheets from the Council he believed the information from the social worker overrode these factsheets.
• He disbursed the house sale funds in July 2017 as he believed the Council was funding Ms Z’s care and the Council had not sent him any invoices.
• The Council failed to issue any invoices for residential care charges until June 2018.
• The Council failed to complete any further financial assessments considering the disbursement of funds from the house sale.
25. The Council completed a further financial assessments in September 2021 and October 2021 reducing the balance owed to £62,393.54.
26. The Council sent a complaint response to Mr X on 30 November 2021. The Council said:
• It accepted the email in March 2017 was confusing and apologised for any poor communication.
• It maintained the factsheet provided to Mr X in December 2016 clarified Ms Z’s financial obligation. The Council also said a phone call in April 2017 with Mr X confirmed it still needed to complete a financial assessment.
• Mr X and Ms Z should have been aware that receiving care in a care home was chargeable since Ms Z had received both respite care and home care before entering the care home.
• It must assume that capital from sale was still available to Ms Z since Mr X disbursed this capital in knowledge of needing to contribute to care fees.
• It had now applied a 12-week disregard to Ms Z’s care fees from the date she entered residential care.
• It had completed further financial assessments of Ms Z since sale of the property but decided Ms Z should have been a self-funder.

Charging for care

27. The Care Act 2014 (the Act) is the legislation that sets out local authorities’ powers and duties in respect of adult social care services. The Department of Health and Social Care also produces statutory supplemental guidance for local authorities on how to discharge these duties. This is called the ‘Care and support statutory guidance’ (the Statutory Guidance).
28. Section 14 of the Act gives a local authority the power, with certain exceptions, to charge for care and support it arranges to meet an adult’s needs.
29. Section 17 of the Act explains that, where a local authority decides to charge for care and support, it must assess the adult’s financial resources to calculate the amount (if any) the adult would be likely to be able to contribute towards the cost of the care and support.
30. In carrying out a financial assessment, the local authority must follow the ‘Care and Support (Charging and Assessment of Resources) Regulations 2014’ (the Regulations). The Regulations set out how local authorities should treat an adult’s income and capital for the purposes of calculating care contributions.
31. The Statutory Guidance says that a personal budget should specify the amount the service user will have to pay towards the cost of the care, based on the financial assessment. It explains that a personal budget is the mechanism, in conjunction with the care and support plan, that enables the person to exercise greater choice and take control over how their care and support needs are met.
32. A financial assessment should be completed as soon as reasonably practicable. The Ombudsman would expect a financial assessment to be done within four weeks of a care assessment. A care assessment and financial assessment are part of one process.
33. Paragraph 8.2 of the Statutory Guidance says that when a council decides to charge for care it should be “clear and transparent, so people know what they will be charged”.

Analysis

34. The Council has shown it provided Mr X with factsheets about charging for residential care on 2 December 2016. Mr X signed an agreement that he received these factsheets. The factsheets provided by the Council explain when a Council will charge for care.
35. Ms Z had also previously received home care from the Council and was due to be placed in respite care. I can conclude Mr X would have been aware of the prospect that Ms Z would need to pay for residential care on 2 December 2016 given Ms Z’s history and the Council factsheet.
36. While Mr X would have been aware of the prospect that Ms Z may need to pay for her residential care, this was not definitive on 2 December 2016. The Council had not completed a residential care assessment, a financial assessment or confirmed with Mr X that Ms Z would definitely need to pay for her care in December 2016. In December 2016, Mr X was not even certain Ms Z would remain in the care home following the respite care.
37. I cannot conclude that Council suitably told Mr X about the care charges Ms Z would incur in residential care based on provision of this factsheet alone.
38. As part of my enquiries of the Council I asked it to provide evidence of when the Council first confirmed the exact cost of residential care to Mr X. The first time the Council confirmed the exact cost of residential care charges with Mr X was on 24 May 2018 when it wrote to confirm the outstanding balance owed since 21 January 2017.
39. A council should provide a person with all information it has available at the time of the care assessment. A personal budget should be clear and transparent so a person can understand the cost of their care. The Council cannot expect a person to know the cost of care based on the level of support provided alone or based on a non-person-centred factsheet.
40. The Council did not explain what care costs might look like for a person in receipt of Ms Z’s level of care. That was fault by the Council.
41. Despite completing an assessment of Ms X on 21 January 2017 and deciding she needed to stay in residential care, the Council did not complete its financial assessment of Ms Z until May 2018. It took the Council nearly 70 weeks to provide Mr X with any details about Ms Z’s residential care costs.
42. The Ombudsman would expect the Council to take no longer than four weeks to complete a financial assessment following a care assessment. This 66-week delay in completing the financial assessment was fault by the Council.
43. In March 2017, Ms Z’s social worker also wrote to Mr X to advise Ms Z’s budget had been authorised. This email is misleading and I see no reason to dispute Mr X’s comments that this led him to believe the Council was funding Ms Z’s care. It was not until 9 October 2017 the Council corrected this misinformation.
44. Given the failure to complete a financial assessment, lack of invoices from the Council and misleading information from Ms Z’s social worker, the Council should not charge Ms Z for any care from 19 February 2017, four weeks on from the date of the care assessment, until 9 October 2017. The Council should remove all remaining residential care charges for Ms Z’s care from 19 February 2017 until 9 October 2017.
45. The Council has shown that on 9 October 2017 it gave Mr X clear information that Ms Z should be paying for her care. From this point, Mr X should have been aware that Ms Z would need to contribute to her care. However, the Council still failed to confirm any care costs to Mr X until 24 May 2018.
46. Given that Mr X was aware that Ms Z would incur residential care charges, but the Council still failed to confirm what these care costs would be, the Council should reduce any residential care charges for Ms Z’s care by 50% from 10 October 2017 until 24 May 2018.
47. Once the Council provided Mr X with care costs for Ms Z’s residential care on 24 May 2018, and provided invoices for the full cost of the care, the Council met its responsibility. The Council is entitled to charge for all care costs from 25 May 2018. I do not find fault with any charges by the Council since 25 May 2018.

Deprivation of assets

48. The charging rules for residential care are set out in the ‘Care and Support (Charging and Assessment of Resources) Regulations 2014’ (the Regulations), and the ‘Care and Support Statutory Guidance 2014’ (the Statutory Guidance). When the Council arranges a care home placement, it must follow these rules when completing a financial assessment to decide how much a person must pay towards the costs of their residential care.
49. The rules state that people who have over the upper capital limit, £23,250, should pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
50. Regulation 22 says councils must treat people as still having capital they have deprived themselves of for the purpose of reducing the amount they need to contribute to the costs of their care. Capital treated this way is often called ‘notional capital’.
51. However, the CSSG says councils should not automatically assume deprivation. It says there may be valid reasons someone no longer has an asset and councils should ensure they fully explore this first.
52. Annex E of the CSSG says that when deciding if someone has deprived themselves of assets, councils should consider:
1. Whether avoiding the care and support charge was a significant motivation;
2. The timing of the disposal of the asset. At the point the capital was disposed of could the person have a reasonable expectation of the need for care and support?; and
3. Did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?

Analysis

53. There is no dispute that Mr X disbursed the funds from Ms Z’s house sale amounting to slightly more than £110,000 in July 2017.
54. The dispute centres over the Council’s decision that Mr X transferred the funds to deliberately avoid care costs. The Ombudsman is not an appeal body. The Ombudsman’s role is to consider the process followed by the Council, whether it followed the guidance and whether there was fault in the way it reached its decision. If the Council considered the information properly and followed the relevant legislation and guidance, the Ombudsman cannot find fault just because a person disagrees with the decision.
55. The Council should consider the three questions outlined in Annex E of the Statutory Guidance when deciding if a person has deprived themselves of assets.
56. As part of my enquiries of the Council I asked it to provide evidence of its contemporaneous thinking and decision making about Ms Z’s deprivation of assets. The Council has not provided any contemporaneous case notes but pointed to its complaint response in November 2021. In this letter Mr X ‘after considering the information’ it ‘had examined’ it ‘believed that the capital was dispersed in the knowledge that this would have an impact on charging’.
57. Within this statement that Council has failed to show consideration of the three criteria in Annex E of the Statutory Guidance.
58. The Council’s decision has considered questions b) and c) of Annex E of the Statutory Guidance by asking the relevant questions about expectation of needing care and needing to contribute to care. The Council considered the relevant information available and reached its decision considering these questions.
59. The Council did not show any consideration of what Ms Z’s or Mr X’s motivation was in disposing of the assets. The Council failed to consider all three criteria when reaching its decision about deprivation of assets. This was fault.
60. The Council should reconsider its decision about deprivation of assets considering all three questions outlined in the statutory guidance. The Council should ensure it considers the circumstances detailed in this decision statement. Namely that in July 2017, when Mr X disbursed the capital from the house sale, Ms Z’s social worker had led Mr X to believe the Council was funding Ms Z’s residential care. And, the Council did not confirm until October 2017 that Ms Z would need to contribute towards her care costs.

Back to top

Agreed action

61. Within one month of the Ombudsman’s final decision the Council should:
• Remove all remaining residential care charges for Ms Z’s care from 19 February 2017 until 9 October 2017.
• Reduce any residential care charges for Ms Z’s care by 50% from 10 October 2017 until 24 May 2018.
• Reconsider its decision about deprivation of assets taking into consideration all three questions outlined in the statutory guidance and the circumstances in July 2017 when disbursal of the funds took place. The Council should write to Mr X to explain is reconsideration of its deprivation of assets decision.
62. Within two months of the Ombudsman’s final decision the Council should:
• Confirm in writing to Mr X the balance owed following the reductions detailed in Paragraph 61 and following its reconsideration of its deprivation of assets decision.

Back to top

Final decision

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

Back to top

Investigator's decision on behalf of the Ombudsman