Summary: There is no evidence of fault in the way the Council assessed Mrs X’s contribution towards her residential care fees or notified her family of the charges.

The complaint

1. Mr X (as I shall call him) complains the Council is charging Mrs X so much for her residential care fees that he is unable to manage his own living expenses with the remaining income and has gone into debt.

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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 considered the written information provided by Mr X and by the Council. Both Mr X and the Council had an opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

5. 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.
6. 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.
7. 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.
8. The Care and Support Statutory Guidance says, “Only the income of the cared-for person can be taken into account in the financial assessment of what they can afford to pay for their care and support. Where this person receives income as one of a couple, the starting presumption is that the cared-for person has an equal share of the income. A local authority should also consider the implications for the cared-for person’s partner.”
9. The local authority must leave the person with a minimum amount of income. This is known as the Personal Expenses Allowance (PEA). There may be some circumstances where it would not be appropriate for the local authority to leave a person only with the personal expenses allowance after charges. Where a person is paying half their occupational or personal pension or retirement annuity to a spouse or civil partner who is not living in the same care home, the local authority must disregard this money. 
10. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
11. There are two types of LPA.

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

What happened

12. Mrs X is an elderly lady with dementia. In 2021 she went into a care home for temporary respite care when it was no longer possible for her care to be managed at home after she began to exhibit aggressive behaviour. Mr X and Ms B (their daughter, who lives some way away) have power of attorney for Mrs X’s finances and health and welfare. Mrs X was assessed as lacking capacity to make her own decisions about her future care and accommodation.
13. The Council says in June 2021 Mr X and Ms B asked for Mrs X’s placement at the care home to be made permanent. They said it was not possible for Mr X to look after Mrs X at home again.
14. Mr X says he did not ask for Mrs X’s placement to be made permanent: it was on the recommendation of the social worker and he wanted Mrs X to have the right care. The support plan review for 7 July 2021 says, “He (Mr X) feels this is the best for her now, as she is safe and he will not have to worry about her attempting to leave the house at night.” It adds, “Request has been made by (Mrs X)’s husband and daughter to make her placement permanent. Both parties acknowledge that husband is not trained to deal with her challenging behaviour. Her mental health decline and challenging behaviours are adversely impacting her husband's mental and physical health, considering he has his own health needs and history of heart attack and mini strokes.”
15. The Council’s case work recording for 7 June 2021 notes “charging policy explained to LPA Finance dtr & husband on 11.06.21 – face to Face”. The Council carried out a financial assessment of Mrs X’s finances and assessed her contribution towards the cost of her care at £137 a week. The Council wrote to Mr X and Ms B on 19 June with an explanation of the charges
16. In September 2021 Mr X expressed his concern to the social worker about the cost of Mrs X’s placement. He said he had not been told he would have to pay. He said the amount was more than he could afford. The social worker contacted the Council’s finance team to ask about the assessment.
17. The finance team manager responded that the assessment had been undertaken on Mrs X’s income not Mr X’s. He said, “The assessment is correct and I see no reason why the weekly charge can’t be paid or why a write off would be approved.”
18. Mr X did not pay the assessed contribution. In February 2022 Mrs X’s social worker met Mr X and Ms B at the care home and discussed the non-payment with them. He emailed them on 21 February and said he had sought advice from his manager and been asked to advise them to set up a direct debit urgently to pay the ongoing fees.
19. Mr X responded that he was unable to afford the payments due to his own circumstances and said he would have to take Mrs X out of the care home. The social worker emailed him again explaining it was a legal requirement for Mrs X to pay her assessed charges. He said as Mrs X lacked capacity to deal with her own finances, it was a matter for her attorneys to manage her payments. He said he had been advised that unless Mr X and Ms B resolved the ongoing debt accrual by setting up a direct debit, the Council would have to consider safeguarding measures to ensure payment under deputyship arrangements: he added that Mrs X would remain in the home where her assessed needs were being met.
20. Mr X complained to the Ombudsman. He said the Council was threatening him with debt collectors as the contributions had not been paid since June 2021. He said this would force him into penury. We asked the Council to consider the matter as a complaint as it had not yet had an opportunity to do so.
21. Mr X and Ms B met Mrs X’s social worker at the care home on 6 April. Mr X said a direct debit had been set up for the payments. He said however he lived in a privately rented 3-bed cottage where he and Mrs X had lived for over 30 years, and although he received Housing Benefit he had to top it up significantly out of his income. The social worker talked to Mr X about alternative housing options for himself near the care home so that he could afford to pay Mrs X’s contributions and continue to see her regularly.
22. The Council’s service manager wrote to Mr X on 11 April and referred to the meeting with the social worker. She said the Council would support him with making applications for alternative housing. She said the accrued debt would have to be discussed but she added, ‘I would like to assure you, that we will work with you to arrange a payment plan which will be considerate of your personal circumstances.’
23. The social worker met Mr X again on 13 April and discussed his housing options. She noted his wishes to move somewhere he could have a greenhouse to pursue his hobby; she also noted he had concerns about the cost of moving.
24. The Council’s records show it made a referral for Mr X to a sheltered housing complex where he would have access to a garden as well as being able to have his own greenhouse to continue his hobby of growing chillies. The Council also pursued referrals to a housing association and to the local district council so Mr X could bid for suitable properties there.
25. Mr X declined the referrals. He told the social worker he did not want to move from his home where he had a large garden, and two workshops as well as a garage. He says he is not ready for sheltered accommodation. He says he has not been offered accommodation where he could pursue his hobbies.
26. In June the Council wrote to Mr X about the financial difficulties he was experiencing. It said it would like to offer him a Care Act assessment himself to see if he had eligible needs it could meet. It said it would not charge Mrs X for her care for three months (until 19 September 2022) to enable him to resolve his financial situation. It also said it would not pursue the debt which had accrued from the date of Mrs X’s admission to care (June 2021).
27. Mr X said he was grateful but confused as to how the Council thought his circumstances would have changed by September. He said the Council was ignoring the emotional and financial cost to him if he moved home.
28. The Council says ‘various Social Workers have attempted to discuss with (Mr X), his financial situation, including his debt issues and private rented accommodation issues. Social Workers have also noted that (Mr X) has sought advice from the voluntary sector,Citizens Advice Bureau, and a referral was made to Peabody, which (Mr X) did not respond to’. It says the advice given to him was to show him options for his future planning in the light of his changed circumstances. It says workers were clear with Mr X that his outgoings exceeded his income and that Mrs X’s income had to be used for her care and support. Mr X says he did not decline the Peabody referral but asked further questions of the Council to which he did not receive a response.
29. The Council says it has not only offered Mr X the opportunity to move to alternative accommodation which would have met his needs and accommodated his hobbies but has also offered him a Care Act assessment which he has refused.

Analysis

30. There is no fault in the way the Council calculated Mrs X’s contribution towards her care home fees. The Council’s records show it explained the charges when social workers met Mr X and Ms B in June 2021 and then wrote to them to confirm the charges.
31. The Council has waived Mrs X’s charges until 19 September 2022 to give Mr X an opportunity to make changes so he can afford to pay Mrs X’s assessed contribution.
32. The Council has offered assistance to Mr X in finding different, more affordable, accommodation where he could continue to pursue his hobbies but he has so far declined. That is his prerogative, but it is not fault on the part of the Council.

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Final decision

33. I have completed this investigation on the basis there is no fault on the part of the Council.

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Investigator's decision on behalf of the Ombudsman