Summary: Mrs X complained about a delay in assessing the contribution her mother, Mrs Y, should pay towards the cost of her care home. The Council was at fault for delays in carrying out the financial assessment and issuing an invoice for the shortfall in the payments made towards Mrs Y’s care. It should apologise, waive part of the invoice and make service improvements.

The complaint

1. Mrs X complained about the Council’s delay in carrying out a financial assessment to determine her mother, Mrs Y’s contribution to the costs of her residential care. This resulted in a large and unexpected invoice being sent in August 2022 covering the period from April 2021.
2. Mrs X said that paying the unexpected invoice would cause Mrs Y financial hardship and may put her placement at risk.

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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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)

Back to top

How I considered this complaint

7. I considered:
• the information provided by Mrs X and the Council;
• relevant law and guidance, as set out below; and
• our guidance on remedies, available on our website.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

Charging for residential care

9. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. Councils must also have regard to the Care and Support Statutory Guidance (the 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. The financial assessment considers both the income and the capital the person has.
11. The Guidance says councils must “provide information to help people understand what they may have to pay, when and why and how it relates to people’s individual circumstances. This must include the charging framework for care and support, how contributions are calculated (for both assets and income) and the mans tested support available, top ups and how care and support choices may affect costs”.

Lasting power of attorney

12. 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' is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.

Court appointed deputies

13. If there is a need for continuing decision-making powers and there is no relevant EPA or LPA, the Court of Protection may appoint a deputy to make decisions for a person. It will also say what decisions the deputy has the authority to make on the person’s behalf. The Office of the Public Guardian (OPG) oversees the work of attorneys and court-appointed deputies and produces detailed guidance for them.

Deprivation of liberty safeguards (DoLS)

14. The Deprivation of Liberty Safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative.

NHS Continuing Healthcare

15. 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.

What happened

16. Mrs Y had been living at home with a package of support. In late 2020 and early 2021 she had a number of falls requiring a hospital stay and was experiencing memory problems. By late January, her daughter, Mrs X, felt Mrs Y was no longer safe at home and this view was supported by Mrs Y’s GP. In a telephone call in late January 2021, Mrs X’s husband, Mr X confirmed Mrs X dealt with Mrs Y’s finances, that they did not have a lasting power of attorney (LPA) for Mrs Y and that Mrs Y would not be a self-funder. At that stage, the Council considered Mrs Y could stay at home with a package of care, which is what Mrs Y had told it she wanted.
17. Mrs Y’s condition continued to decline and in March 2021, the Council assessed Mrs Y as needing residential care. Council records show there was a discussion with the social worker, who assessed Mrs Y’s needs, and Mr and Mrs X about charges for residential care. The record stated Mrs X was aware Mrs Y would need to contribute towards the cost of her care and that the amount of the contribution would be determined by a financial assessment.
18. The Council started to look for a suitable care home, but Mrs Y was readmitted to hospital a few days later. She was discharged from hospital to a care home in April 2021. In its complaint response, the Council said it had told Mrs X that Mrs Y would need to pay an “indicative” contribution of £152.20 per week until the financial assessment was completed. When asked to provide evidence of this, the Council said it could not provide a copy of its “residents agreement” and had no record this was sent to Mrs X. However, the cost was detailed in the “long-stay agreement” shared with the care home. There is no dispute Mrs X was aware of this cost and paid this amount directly to the care home.
19. The Council’s finance team contacted Mrs X about the financial assessment form in late April. Mrs X told the Council to send the form to Mrs Y’s former address.
20. As the Council had not received a completed form, it telephoned Mr and Mrs X in May 2021. Mr and Mrs X said they could not complete the form due to the Deprivation of Liberty Safeguard (DoLS), which was in place for Mrs Y. They suggested Mrs Y’s social worker should complete the form. It is not clear whether they had seen the form and the information about care costs contained within it at that stage.
21. The finance team tried to contact the social worker but did not receive a response so they sent chaser emails to the social worker in June and August. Also, in August, the finance team asked the Council’s deputyship team if there was an application progressing to appoint a deputy to act for Mrs Y. The deputyship team confirmed there was no application being made for Mrs Y.
22. In December 2021, the finance team contacted Mr and Mrs X again. They said:
• they could not complete the form because they did not have a lasting power of attorney (LPA) for Mrs Y, and she no longer had capacity to grant an LPA;
• they had no legal responsibility to complete the financial assessment form or share information about Mrs Y;
• they did not agree to the Council sending the form to them and said it should be sent to Mrs Y’s former address.
23. Following this, the finance team again tried to contact Mrs Y’s social worker and posted a further copy of the financial assessment form to Mrs Y’s former address.
24. In mid-January, Mrs X returned a partially completed financial assessment form. She did not provide any supporting evidence, so the finance team called Mrs X about this. Mr and Mrs X were initially unwilling to provide evidence, but later agreed to provide mini statements after the officer said that Mrs Y would have to pay the full costs of her care if the Council was not able to complete the financial assessment. Also, during the call, Mr and Mrs X:
• confirmed Mrs X was assisting Mrs Y with her finances, including making purchases for her and paying the indicative contributions to the care home;
• agreed the Council could contact the Department of Work and Pensions (DWP) about Mrs Y’s Attendance Allowance (AA); and
• agreed to contact the district council about Mrs Y’s housing benefit.
25. In early February, Mr and Mrs X asked whether Mrs Y’s care costs could be funded by NHS continuing healthcare (CHC) and referred to an article, which they said indicated the Council should have carried out a CHC assessment before doing a financial assessment. The finance team checked with Mrs Y’s social worker and established Mrs Y was not eligible for CHC. The social worker spoke to Mr and Mrs X to explain this had been considered in early 2021 but Mrs Y did not have nursing care needs that would justify carrying out an assessment for CHC.
26. The Council completed the financial assessment in early February 2022 and sent a notification letter to Mrs X. This stated the weekly contribution to the care costs would be £252.10 per week from 13 April 2021 and that this replaced the previous “provisional charge if applicable”.
27. In March Mrs X informed the Council that notice had been given on Mrs Y’s former property, and Mrs Y was no longer responsible for this from 30 April 2022. In correspondence with me, Mrs X said the district council was seeking to recover an overpayment of housing benefit for the period after Mrs Y moved to the care home but was still paying rent.
28. On 14 August, the Council sent Mr and Mrs X a letter saying it was changing the way that contributions were made following an earlier Ombudsman decision. This meant that, in future, contributions would be paid to the Council rather than the care home. The letter said this would not affect the amount of the contributions, which were stated to be £156.95 per week, meaning that the change in the way contributions were paid did not affect the calculation of the contribution. The letter did state that “contributions are subject to change as part of the standard assessment or reassessment process”.
29. In late August 2022, the Council wrote to Mrs X. It said it had told her the provisional amount Mrs Y would need to contribute towards her care costs was £152.10 per week. However, the actual contributions required, following the financial assessment, were higher (£252.10 per week to 9 April 2022, and £259.94 per week after that). This meant there was a shortfall in the contributions paid. It issued an invoice for £7,020 for the period 13 April 2021 to 13 August 2022. It sincerely apologised for the delay in sending the letter and invoice.
30. Mr and Mrs X complained in November 2022. The Council responded on 13 January 2023. It said:
• it had informed Mrs X that Mrs Y would need to make a contribution towards her care costs; and
• there was a delay in carrying out the financial assessment, which was due to trying to establish who would act as Mrs Y’s financial representative and would provide the information needed.
31. Mr and Mrs X remained unhappy and complained to us. They said:
• they were unaware that Mrs Y’s contributions were insufficient, and the Council had not taken all relevant factors into account when determining the assessed contribution;
• they had given consent for the Council to contact the DWP but not to stop Mrs Y’s attendance allowance;
• there was a delay of six months between completing the financial assessment and writing to them with the outcome; and
• the communication on 14 August said the amount of the contributions would not change as a result of the change to the way they were paid.

My findings

32. The records show the Council discussed its charging policy with Mr and Mrs X as part of its needs assessment in March 2021 so they were aware Mrs Y would need to make a contribution towards her care costs.
33. Mrs Y moved to a care home in April 2021 and the records show it was agreed this was a permanent move at that time.
34. There is reference to an “indicative” (sometimes referred to as a “provisional”) contribution of £152.20 per week to 9 April 2022, which increased to £156.95 per week from 10 April onwards. Mr and Mrs X paid this contribution initially to the care home and to the Council from August 2022 when the system changed.
35. Mr and Mrs X said they did not know this was an estimate of the contribution needed and may not be sufficient. The Council’s policy says the indicative charge is intended to provide early notice of the personal contribution the person needs to make and is based on an indicative financial assessment. I have not seen any record to show how the indicative contribution was calculated in this case and, whilst I appreciate it was based on information the Council had prior to carrying out the financial assessment, it is not clear why the actual contribution was significantly different. There is no record to confirm what information, if any, the Council gave Mr and Mrs X about the indicative contribution, nor any record they were given general information about charging or financial assessments in writing. This was fault.
36. There was a delay in completing the financial assessment between April 2021 and February 2022. In its complaint response the Council said this was because there was some uncertainty about who would be Mrs Y’s financial representative and provide the information needed to complete the financial assessment. The Council has provided no information about why this was a particular issue here.
37. The fact that there was a DoLS authorisation does not mean Mrs X could not complete the financial assessment form, but there is no record the Council explained that to her. Whilst there was a suggestion that the social worker may have the information needed to complete the financial assessment, and it was appropriate for the finance team to try to clarify this, the matter should not have been allowed to drift as it did.
38. Mrs Y was not eligible for CHC funding, and the Council had not applied for deputyship on her behalf or advised Mrs X that she needed to do so before it could complete its financial assessment. Therefore, the Council should have been able to explain to Mrs X that either she would need to provide the information for the financial assessment or Mrs Y would need to pay the full cost of her care much earlier than January 2022. The delay in doing so was fault.
39. There was no delay in completing the financial assessment when the Council had the information to do so, and no fault in the way it carried out the financial assessment. The Council wrote to Mrs X with the outcome. This put Mrs X on notice that the indicative contribution was not sufficient, although it gave no indication the Council would be billing her for the difference.
40. There was then a further delay of six months in issuing an invoice for the shortfall between the indicative contribution and the assessed contribution. This delay was fault.

Injustice caused by faults identified

41. The lack of appropriate information about the costs of Mrs Y’s care and the delays in carrying out a financial assessment and issuing an invoice for the shortfall meant Mr and Mrs X were not able to properly manage Mrs Y’s finances. They were aware of the indicative contribution, which they paid. They were unaware those contributions were not sufficient until February 2022 and were not told then that the Council would be recovering the shortfall. They are now faced with a large invoice, which they were unable to plan for.
42. The Council’s letter in early February 2022 set out the assessed contribution. Mr and Mrs X were therefore aware of the correct amount at that point, and it is reasonable to expect them to have been aware they would be required to pay that amount from that point onwards.

Additional complaint

43. In her complaint to us, Mrs X also said she had agreed to the Council telling DWP that Mrs Y was now living in a care home. This led to DWP stopping Mrs Y’s AA and I understand it recovered an over-payment. I also understand Mrs X is unhappy that the district council asked them to repay housing benefit although Mrs Y continued to pay the rent.
44. The Council was not responsible for the actions taken by DWP and the district council, and I have already found fault with the lack of information provided to Mr and Mrs X at the outset.

Back to top

Agreed action

45. Within one month of the date of the final decision, the Council will:
• apologise to Mr and Mrs X for the injustice caused by the lack of information about Mrs Y’s care costs and its delays in completing the financial assessment and issuing an invoice for the shortfall in contributions; and
• waive the part of the invoice dated August 2022 that relates to the shortfall in care costs for Mrs Y for the period 13 April 2021 to 9 February 2022, and issue a revised invoice for the amount that remains outstanding.
46. Within three months of the date of the final decision, the Council will:
• share a copy of the decision statement with relevant staff in its finance team and ASC teams so they can learn from what happened in this case;
• check that their charging leaflet covers all relevant information, including practical information such as the need to tell DWP and other bodies, such as landlords, when someone has moved into permanent residential care, and remind relevant staff of the importance of sharing this with families at an early stage;
• provide guidance to relevant staff on what action to take if a family member refuses to complete the financial assessment form, including checks to make about whether there is a deputyship application or other reason why the family member is not able to complete the form or it is not appropriate for them to do so, and to ensure that family members are told without delay that the full costs of care will be chargeable if a financial assessment cannot be completed without good reason; and
• review how it calculates its indicative contribution to ensure it is as accurate as it can be, that it keeps a record of how this is calculated on each case, and that it writes to the family to confirm the indicative contribution, explaining that if the assessed contribution following the completion of the financial assessment is higher than the indicative contribution, it may recover the shortfall.
47. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

48. I have completed my investigation. I have found fault causing personal injustice. I have recommended action to remedy the injustice and prevent recurrence of the fault.

Back to top

Investigator's decision on behalf of the Ombudsman