Summary: Mr X complained about how the Council assessed his father’s contribution to his care costs. There was fault in how the Council considered some of the costs claimed on behalf of his father, explained its decisions, considered his appeal, and handled the complaint. The Council agreed to apologise, review the decision, pay a financial remedy and review its policy.

The complaint

1. Mr X complains, on behalf of his parents, Mr and Mrs Y, about how the Council calculated Mr Y’s contribution to his care costs. He says the Council:
• failed to follow government guidance;
• refused to make appropriate allowances for costs related to Mr Y’s former home; and
• delayed making decisions and responding to his complaints.
2. As a result, Mr X says Mr Y has had to pay more towards his care costs and Mrs Y has had to pay more than her share of household expenses. Mr X wants the Council to review its financial assessment and include Mr Y’s costs for his former home.

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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. 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. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (Local Government Act 1974, section 26A)
6. 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

7. I considered:
• the information Mr X provided and discussed the complaint with him;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law, guidance and Council policy.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Charging for residential care

9. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their 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.
10. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
11. Where someone owns their home before going into care, councils must disregard the value of this property when assessing how much someone should pay towards their care in certain circumstances. These include:
• for the first 12 weeks after someone moves into a care home; and
• for longer than this so long as their former partner (or certain other relatives) still lives in the home.
12. When calculating someone’s contribution to their care home fees, councils must leave a person with a minimum amount of income. This is called the Personal Expenses Allowance (PEA) and is set nationally by the Government.
13. The Care and Support Statutory Guidance says that there may be some circumstances where councils should consider making extra allowances, in addition to the PEA, including:
• 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; and
• where a person’s property has been disregarded the [council] should consider whether the PEA is sufficient to enable the person to meet any resultant costs. For example, allowances should be made for fixed payments (like mortgages, rent and Council Tax), building insurance, utility costs (gas, electricity and water, including basic heating during the winter) and reasonable property maintenance costs. (Care and support statutory guidance, Annex C, paragraph 46)

Council’s charging policy

14. The Council’s charging policy for care and support says:
• In some circumstances, the Council can allow certain housing costs for what was your former main or only home. If you rented your former home, this expenditure will only be allowable for the first 4 week of your stay in a care home. If, however, you owned your former main or only home, we may continue to allow certain expenditure for the duration of the 12 week property disregard period and longer if your property qualifies for either a mandatory or discretionary disregard.
• The expenditure we can consider allowing is:
1. Mortgage repayments (or the percentage you are responsible for in cases of joint ownership)
2. Rent
3. Service Charges
4. Ground Rent
5. Council Tax
6. Buildings Insurance
7. Contents Insurance
8. Water Rates (not metered)
9. Gas & Electricity (minimum usage)
15. In its complaint investigation the Council set out its approach to applying these rules in practice where it disregards a property because someone’s partner still lives there. It said that the Council takes into account “half of any costs that would be required to be paid regardless of any usage. For example, water rates, buildings or contents insurance, fixed or standard charges for heating and electricity (not including usage). … Other costs such as heating, and electricity usage are not taken into consideration as that usage relates to the person who is still residing in the property. As with any other person who lives alone in their home, those costs should be met from that person’s income”.
16. Where someone disagrees with the Council’s financial assessment, the Council’s policy says they can appeal within three months on the following grounds:
1. If you feel that the Council have not applied this policy correctly when calculating your assessed charge; or
2. You think you have expenses that has not been taken in to account; or
3. You feel that you cannot afford the charge as it would cause you financial hardship
17. In cases of financial hardship, policy says that supporting information will be required and this will be passed to a specified senior manager.

Complaints about adult social care

18. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. The council should include in its complaint response:
• how it considered the complaint;
• the conclusions reached about the complaint, including any required remedy; and
• whether it is satisfied all necessary action has been or will be taken by the organisations involved; and
• details of the complainant’s right to complain to the Local Government and Social Care Ombudsman. (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)
19. Regulations do not say how long a complaint investigation should take. But they do say an expected timescale must be explained at the start, usually in discussion with the complainant. If the complainant does not want to discuss this, the responsible body must decide the timescales and confirm them to the complainant in writing. The body must keep the complainant informed of progress during the investigation ‘as far as reasonably practicable’. If the responsible body has not provided its response after six months (or after a longer period agreed with the complainant), it must write to the complainant to explain why. (Regs 13 and 14, Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

What happened

20. Mr X’s parents, Mr and Mrs Y, jointly own their own property.
21. Mr Y moved into a care home, arranged by the Council, in early 2021. At first, this was intended to be on a temporary basis, but became a permanent move in late February 2021.
22. The Council completed a financial assessment for Mr Y in early March 2021 and decided that Mr Y needed to contribute to his care costs. In its assessment the Council:
• disregarded the value of Mr and Mrs Y’s home, since Mrs Y still lived there;
• disregarded half of Mr Y’s occupational pension; and
• allowed an extra amount for Mr Y’s contribution to water rates and home insurances.
23. A few weeks later, Mrs Y and Mr X questioned the Council’s financial assessment. They said that the Council should have made an allowance to allow Mr Y to pay for half of all the household bills, including council tax, utilities, insurance and house maintenance because he still jointly owned the property.
24. Mr X contacted the Council again in late April 2021, after the Council sent an invoice for Mr Y’s contribution to his care costs. He asked the Council again about how it had calculated Mr Y’s contribution and said he wanted to make a formal complaint. However, a few days later Mr X asked the Council to withdraw his complaint.
25. At the end of April 2021 the Council replied to Mr X and Mrs Y. It told them it had made all the allowances it could when calculating Mr Y’s contribution and explained how they could appeal the decision.
26. Mr X complained to the Council about the assessment in early May 2021. The Council replied around two weeks later explaining how it had calculated the allowance and that the case had been forwarded to a manager who would respond when they returned to work. However, there is no evidence the Council did this.
27. Mr X chased the Council for a response in August 2021. The Council replied the following day asking for further evidence of the utility service charges for Mr Y’s property. Mr X sent these to the Council a few days later.
28. The Council reviewed its decision and slightly increased the allowances for Mr Y’s contribution to the house expenses in mid-August 2021. It told Mr X that this was its final decision and if he was still unhappy he would need to make a formal complaint.
29. Mrs Y complained to the Council in mid-September 2021, on behalf of Mr X, about the financial assessment and other issues related to his move to the care home. The Council sent Mrs Y its final complaint response in May 2022, after which Mr X complained to the Ombudsman.

My findings

30. Mr Y cannot authorise someone to bring a complaint on his behalf. However, I am satisfied that Mr X is a suitable person to complain on behalf of Mr Y.

Allowances for household expenses

31. It is not our role to decide what allowances the Council should make for Mr Y’s household expenses; that is the Council’s responsibility. Our role is to assess whether the Council made its decision properly, including whether it considered the appropriate rules and guidance. We cannot question a decision the Council has made if it followed the right steps and considered relevant evidence.
32. The statutory guidance says there are circumstances in which a Council should consider whether a person’s PEA is enough to allow them to contribute to costs from a disregarded property. However, it does not go into any detail about what councils must consider when making such allowances.
33. There are several different circumstances in which someone’s property should be disregarded for different periods of time. In these different circumstances, someone’s liability for bills related to their former home, especially council tax, might also be different.
34. I am satisfied the guidance does not say that councils must make some allowance for all household bills in all cases where someone’s former home is disregarded. Instead, where there are costs resulting from someone still owning a disregarded property, councils may consider the individual circumstances when deciding if they need to increase the PEA to cover those costs. This might include:
• other owners or residents of the disregarded property (and, if relevant, their financial circumstances);
• any other income which has already been disregarded which might be used to pay for costs associated with the property;
• the legal liability for any costs;
• the need to protect the person’s interest in the property; and
• the extent to which any associated costs would need to be met if the property was empty.
35. However, councils should not have a set policy about circumstances in which it will not consider certain expenses. They should consider each case on its own merits.
36. For some of the costs claimed on behalf of Mr Y I am satisfied the Council properly considered the costs:
• Council tax – the Council made no allowance for Mr Y to contribute to the council tax on the property. It explained that Mrs Y was now entitled to a single person discount and, if she could not afford the cost, she could apply for benefits to help meet these. Since Mr Y moved into the care home, Mrs Y became solely responsible for the council tax; Mr Y is no longer liable. Therefore, I am satisfied there was no fault in how the Council made its decision about this cost. However, the Council did not explain this properly to Mr and Mrs Y when it first carried out the assessment. I address this point later in this decision.
• Insurances – the Council says it made an allowance for household insurances in Mr Y’s financial assessment since these costs would be the same if the property was empty and would protect his interests.
37. However, for other costs I am satisfied there was fault in the Council’s decision making:
• Utility bills – the Council allowed for half of the standing charges for utility bills in Mr Y’s financial assessment but no allowance for any ongoing usage. The statutory guidance specifically mentions that councils should consider minimal heating in winter. Since Mr Y still has an interest in the property and ensuring adequate heating during the winter to protect his interest, the Council should have explicitly considered this in its assessment. Its failure to do so was fault.
• Property maintenance – the Council has not explained in its assessment how it considered whether it should make allowances for property maintenance (including a gardener and window cleaner). Since Mr Y still has an interest in the property, it would be reasonable for Mr Y to wish to pay for these costs to protect his interests in the property (including maintaining the property’s appearance to reduce the risk of potential crime). The Council’s failure to properly consider these costs and explain its decision about this was fault.
38. Since there was fault in how the Council considered some of the expenses, the Council should review its decision, properly consider each of the costs and fully explain its decision to Mr and Mrs Y.

Appeals process

39. I am also satisfied there was fault in how the Council responded to Mrs Y’s and Mr X’s requests for reviews of the Council’s decision:
• The Council failed to respond to Mrs Y’s initial query about the assessment. Although the officer making the decision noted they needed to seek some advice about the issue, they never responded to Mrs Y.
• When Mr X chased the decision again, the officer told him the case had been passed to a manager to respond when they returned to work. However, the Council failed to respond until Mr X chased the Council several months later.
• When the Council did send its final decision about the assessment, this was sent from, and appeared to have been made by, the officer who made the original decision.
• Neither the Council’s first or final decisions contained any explanation about the consideration it had given to the costs Mrs Y and Mr X had claimed on behalf of Mr Y. The decisions only contained assurances that the Council had allowed what it could.
40. The evidence shows the Council failed to follow a clear appeals process when reconsidering the financial assessment. Although the officer making the decision sought advice from a manager, there is no evidence of an independent (of the original decision maker) review of the decision. This was fault.
41. The Council’s policy is also unclear about how the appeal process should work, since it only refers to a manager making a decision in hardship cases and does not explain how the Council considers other types of appeal.

Complaints handling and communication

42. The evidence shows there were delays in the complaints handling process. Although Mrs Y’s complaint dealt with other, more complex issues about Mr Y’s care, the Council still took more than six months to make its final decision about the complaint. There is no evidence the Council agreed a longer time with Mrs Y or kept her updated about any delays.
43. Mr X also said the Council originally agreed to suspend sending invoices while the Ombudsman considered the complaint. However, the evidence shows the Council sent further invoices to Mrs Y, including some which were incorrect, several times after it agreed to not do this. This was fault which, given the number of times this happened including after the Council agreed not to send anything further, caused Mrs Y significant avoidable distress.

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Agreed action

44. Within one month of my final decision the Council will:
• apologise to Mr and Mrs Y, and Mr X, for failing to properly consider all of the costs Mr Y claimed, failing to properly explain its decisions and for continuing to send invoices when it had agreed not to;
• reconsider its decision about which household costs to allow and send Mr and Mrs Y and Mr X a fully explained decision about each of the costs claimed;
• pay Mrs Y £250 to recognise the avoidable distress caused by continuing to send her invoices after it had agreed not to;
• ensure it does not send any more correspondence about Mr Y’s outstanding contributions until it has completed its review; and
• pay Mr X £100 to recognise the avoidable time and trouble he was put to in complaining on behalf of Mr and Mrs Y.
45. Within three months of my final decision the Council will:
• review how it considers expenses related to disregarded properties in care and support financial assessments. It should ensure it fully considers individual circumstances when deciding if it is reasonable for someone to contribute to the costs of their former home;
• remind its staff making financial assessment decisions of the need to fully explain their decisions, including their consideration of any evidence;
• review how it considers appeals against financial assessments for care and support. It should ensure that its policy clearly explains the process for considering appeals and that there is enough independence from the original decision maker; and
• review its procedures for placing holds on outgoing debt recovery mail to ensure these are effective in preventing further correspondence being generated and sent.
46. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. I have completed my investigation. There was fault in how the Council considered some of the costs claimed on behalf of Mr Y, explained its decisions, considered Mrs Y’s appeal and handled the complaint. The Council agreed to apologise, review the decision, pay a financial remedy and review its policy.

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Investigator's decision on behalf of the Ombudsman