Summary: There was fault by the Council. It gave confusing advice to Mr Y and his family about his care costs. The Council’s shortcomings caused the family distress and also meant they lost the opportunity to consider whether they should arrange Mr Y’s care differently.

The complaint

1. Ms X complains on behalf of Mr Y, her late father and Mr B, executor of Mr Y’s estate. They complain that the Council gave them misinformation about how much Mr Y would be charged for his residential care, has charged him too much and has not dealt properly with their contact challenging this.
2. Mr B has been left distressed by the situation and says his mental health has suffered.

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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. 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

5. I considered the information provided by Ms X. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered the comments received before issuing the final decision.

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What I found

The law and guidance

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.
9. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period, such as respite care, or there is doubt a permanent admission is required. The person’s stay should be unlikely to exceed 52 weeks, or in exceptional circumstances, unlikely to substantially exceed 52 weeks. A decision to treat a person as a temporary resident must be agreed with the person and/or their representative and written into their care plan.
10. A council can choose whether to charge a person where it is arranging to meet their needs. In the case of a short-term resident in a care home, the council has discretion to assess and charge as if the person were having their needs met other than by providing accommodation in a care home. Once a council has decided to charge a person, and it has been agreed they are a temporary resident, it must complete the financial assessment in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance.
11. The Guidance also says that financial information and advice is fundamental to enabling people to make well informed choices about how to pay for their care. Councils are required to establish and maintain information and advice services, to include financial information. This includes a duty to provide information on what a person may have to pay, when, why and how.

What happened

12. Mr Y was admitted to a care home on 7 August 2020. He was there under COVID-19 funding which meant that he did not have to pay for this. The case notes show that Mr Y wanted to stay in the care home as he felt he could not cope at home. He had originally told the Council that he did not own property and he had very little savings, but that his brother, Mr B would deal with the finances. The Council had originally thought that Mr Y would need end of life care. This would be paid for by the NHS. However, Mr Y’s application for this funding was refused.
13. By October, the Council had begun to assess how Mr Y’s needs could be best met and how his care would be funded. It learned that Mr Y had an interest in a family house. It spoke to Mr B who said that the house had been sold and when they had the proceeds, this would be split between all the siblings. The Council’s case note says the Council told Mr B that if Mr Y’s share was more than the upper capital limit then Mr Y would need to pay for his own care. The Council also advised Mr B that if Mr Y’s capital fell below the limit he would be assessed to see how much he had to contribute to his care costs; and if his health deteriorated further, they could apply again for NHS funding.
14. From December 2020, the plan was that Mr Y would move from the care home to extra care housing. This would mean that Mr Y would have his own accommodation but onsite care and support facilities. This meant that the Council considered Mr Y to be a short-term resident at the home. He agreed to pay the charge of £135 per week.
15. In January 2021, the Council assessed Mr Y’s finances. In February 2021, the Council explained to Mr B and Mr Y that the Council would disregard the property in which he had a shared interest, for 12 weeks. The Council said it would charge Mr Y at £135 per week for four weeks, and then at £246 per week until 12 weeks had passed, when the charge would rise to £800 per week. The Council explained that when Mr Y became liable for the full charge he could defer payments if the money from the house sale had not come through.
16. The Council said it was looking for extra-care housing for Mr Y to move to but nothing suitable was available and so he would stay in the care home for the time being. Ms X says that she identified some potential places but that the Council did not respond to her about these. Later that month, Mr Y was admitted to hospital.
17. In April 2021, the Council reiterated its advice that Mr Y would be eligible for the 12-week disregard. Sadly, on 6 May, Mr Y died in hospital.
18. The care home invoiced Mr Y’s estate £800 per week from 18 December 2020 to 7 May 2021. The family queried the demand for payment. The Council told them that Mr Y’s capital from the house sale meant that he was eligible for the full cost of his care at £800 per week. The family challenged this because the Council’s social worker in several emails had said that this would not happen until the 12-week disregard had expired. To try to resolve the dispute, Mr Y’s family offered to pay £5,900 which is the amount the Council originally indicated would be payable.
19. The family complained to the Council. The Council’s position is:
• Mr Y was admitted to the care home as a short stay resident and this was chargeable. At the time the Council assumed the Mr Y’s capital was below the limit. Mr Y told it this and he was deemed to have capacity at the time.
• It discussed a 12-week property disregard but then Mr Y asked to be moved to extra care housing, and so the placement should have then been set as short stay. This meant that Mr Y was not entitled to the property disregard.
• The ‘team manager’ at the hospital explained that the property disregard would not apply.
• There was a financial assessment which established that Mr Y was over the capital limit and so he would need to pay the full cost.
• Although there was confusion around the property disregard this would not change that Mr Y was over the capital limit and so was liable to pay the full cost for the time he was at the home and the time in hospital while his accommodation was held open for him.
20. The Council also said that it assessed Mr Y’s finances in June and October 2020. At that point, he was below the financial limit. It was not until the January 2021 assessment that it established he had capital assets above the limit.

Analysis

21. There was fault by the Council. I can see that the Council warned Mr Y and his family that Mr Y would become liable for the full cost of his care. However, it gave confusing advice about the 12-week disregard, what was payable and when. The Council did not Mr Y or his family that the full charge could be backdated, even when it had agreed that he would pay a short-term resident amount.
22. Also, the Council did not make it clear to Mr Y or his family following its financial assessment how much he would now be liable for. The Council on more than one occasion gave Mr Y and/or his family incorrect information about the charges and the 12-week disregard after the financial assessment had been completed and the true situation should have been known by all parties.
23. Finally, there is no evidence that the Council signposted Mr Y or his family to any other service for financial advice or information. Instead, Mr Y and his family were asking straightforward and direct questions about the charges, and the Council was not giving clear advice.
24. Having found fault, I have to consider the impact on Mr Y’s estate and on the family. It was very distressing for Mr Y’s family, his brother in particular, to receive a large and unexpected invoice from the care home, when they were so recently bereaved. Mr B has described how dealing with the Council has impacted on his health, and Mr Y’s daughter had to take over dealing with the complaint.
25. It is also possible that, had Mr Y and the family known he was being charged the full rate of £800 for all that time, they may have reconsidered his care and how to fund it. However, on balance I cannot say that the Councils shortcomings has caused Mr Y’s estate to be liable for more in care fees than it would have been had the Council given clear charging information. For this reason, I have not recommended that the Council waive the fees, or meet part of these itself.

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Agreed action

26. The Council will within one month of this decision show the Ombudsman it has:
• Apologised to Mr B and Ms X for the impact on them of its failings;
• Paid Mr B £300 in recognition of the distress caused to him, and £200 in respect of the time and trouble it put him to in pursuing issues when so recently bereaved; and
• Shared this decision with relevant staff.

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Final decision

27. I have completed my investigation. There was fault by the Council causing injustice.

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Investigator's decision on behalf of the Ombudsman