Summary: Mrs X complained on behalf of her family member, Mrs Y. Mrs X says the Council misinformed her about the charges due for Mrs Y’s care in a care home placement. The Council was at fault for poor communication. It has already apologised for the injustice caused which was an appropriate remedy.

The complaint

1. Mrs X complained on behalf of her family member, Mrs Y. Mrs X says the Council misinformed her about the charges due for Mrs Y’s care in a care home placement.
2. Mrs X says the matter caused her frustration and uncertainty about the amount owed to the Council for Mrs Y’s care.

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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 spoke to Mrs X and considered information she provided.
6. I considered the Council’s response to our enquiries.
7. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Relevant law and guidance

8. 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.
9. 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.
10. 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 can get council support to meet their eligible needs. People who have over the upper capital limit must 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.
11. Where a person lacks capacity, they may still be assessed as being able to contribute towards the cost of their care. Councils should work with a person who has the legal authority to make financial decisions on behalf of a person who lacks capacity. If there is no such person, family members can apply for Lasting Power of Attorney. If there are no family members, the council must approach the Court of Protection.
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.
13. There are two types of LPA: property and finance, which gives the attorney power to make decisions about the person’s finance and property matters, and health and welfare, which gives the attorney power to make decisions about the person’s health and personal welfare matters.

What happened

14. In May 2022 Mrs Y became unwell and went into hospital. Following a Council assessment, Mrs Y was discharged to a care home in August 2022. The Council’s assessment found that Mrs Y lacked capacity to make financial decisions.
15. Once Mrs Y entered the care home, Mrs X spoke with Mrs Y’s social worker. Mrs X said she signed a declaration confirming she was made aware about the Council’s charging assessment and that a contribution may be due following this. Mrs X said she spoke with the social worker who informed her that she would not have to pay for Mrs Y’s care until she was granted LPA for property and financial affairs. Mrs X says she asked several times and was assured by the social worker she would not be required to pay for the care, and that the form she signed was to allow the Council to reclaim additional care costs for Mrs Y’s care.
16. Mrs X then made an application to the Court of Protection for LPA for property and finance regarding Mrs Y.
17. In early September 2022 the Council wrote to Mrs X and told her:
• It acknowledged Mrs X’s application for LPA for property and finance on behalf of Mrs Y.
• It acknowledged Mrs Y did not have capacity to manage her finances and that there was no legal arrangement for anyone to manage these on her behalf. Therefore, it would meet the cost of Mrs Y’s care until a financial assessment took place.
• Once the LPA was granted, its assessment team would contact her to carry out a financial assessment of Mrs Y to calculate any amount owed for the care she received whilst in the care home.
• After the financial assessment, Mrs Y would be liable to meet either the full cost of her care home, or a lesser assessed contribution.
• It would reclaim any amount owed from Mrs Y backdated to the date she entered the care home.
• If Mrs Y died before the LPA was granted, her estate would be liable for the repayment of the assessed contribution from the date of entry to the care home plus three days in accordance with the Council’s agreement with the care home.
18. Mrs X responded to the Council and said she had been misinformed by the social worker. She said the social worker told her the Council would meet the cost of Mrs Y’s care until the LPA deputyship had been granted.
19. The Council responded and told Mrs X that, once the LPA was granted, a financial assessment would take place with her to determine if Mrs Y was able to meet the cost of her care in full or as a partial contribution. It told Mrs X the amount due would be considered from the day Mrs Y entered the care home. The Council apologised for any miscommunication which caused Mrs X to think no contribution was due for the period before the LPA was granted.
20. Mrs X acknowledged the Council’s apology. She told the Council she did not wish to jeopardise Mrs Y’s care placement as she was settled and being provided a good level of care.
21. In December 2022 Mrs Y died. Mrs X contacted the Council and informed them that she had not been granted LPA, but that she was the executor of Mrs Y’s estate. Mrs X said she would contact the Council following probate to settle Mrs Y’s financial affairs.
22. In January 2023 the Council wrote to Mrs X and acknowledged the information. It provided a financial declaration form to enable it to calculate any money owed by Mrs Y’s estate for the care she received whilst in the care home.
23. Mrs X completed the financial declaration form and provided the Council with the evidence it requested.
24. Mrs X then complained to the Council. She said the social worker misinformed her about the nursing home fees and that payment would only be required once the LPA was in place. Mrs X requested an apology for the lack of clarity and asked the Council to ensure the issue did not happen to others.
25. The Council responded in March 2023. The Council:
• Told Mrs X she signed a declaration form regarding Mrs Y’s finances in August 2022 and an acknowledgement form that she intended to apply for LPA.
• Said it had informed Mrs X that it would reclaim any amount owed for the care provided following the financial assessment.
• Acknowledged the communication from the social worker could have been clearer about how much Mrs Y would owe for her care.
• Apologised for the miscommunication and any distress the matter caused.
• Said it would speak with the worker to prevent recurrence of the issue.
26. Mrs X remained dissatisfied with the Council’s response and brought her complaint to us.

Analysis

Charging for care

27. A council can charge individuals for the care they receive in a care home where it has completed a financial assessment in line with the law and statutory guidance. The Council assessed Mrs Y lacked capacity and therefore could not complete a financial assessment when she first entered the care home. It paid the care home until a financial assessment could take place. The Council followed statutory guidance by communicating with a family member, Mrs X, who applied for LPA for property and finance. Mrs Y died before LPA was granted. Therefore, the Council sought to recover the amount due from Mrs Y’s estate. This is not fault.

Communication

28. We cannot know for certain what was said during Mrs X’s conversation with the social worker in August 2022. However, in its complaint response the Council accepted it was at fault for poor communication and said it could have been clearer about how much money would be owed for the care Mrs Y received. Mrs X was aware in September 2022 Mrs Y or her estate would be charged the assessed contribution from the date Mrs Y entered the care home. The Council apologised for any distress its poor communication caused and said it had spoken with the worker to ensure the error did not reoccur. These are appropriate actions to remedy any injustice caused by the fault, and to prevent recurrence of the fault in the future.

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Final decision

29. I have completed my investigation. I found fault, and the Council has already apologised for the injustice caused. This was an appropriate remedy.

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Investigator's decision on behalf of the Ombudsman