Summary: Ms C complains the Council provided inaccurate information about charging for her late father’s residential care. The Council is at fault for delayed assessments of care and charges. It also failed to provide and complete agreements for care which explained the amounts payable by all parties involved. To remedy the complaint the Council has agreed to apologise to Ms C, make a symbolic payment for her time, trouble, and frustration the faults caused her. The Council has also agreed to waive some of Mr D’s outstanding balance, review care agreement contracts and remind staff about the importance of completing agreements and setting out payment expectations.

The complaint

1. The complainant who I call Ms C complains on behalf of her late father, who I call Mr D. Ms C complains the Council:
• delayed and provided unclear information about charging for Mr D’s residential care which has resulted in arrears accruing;
• failed to consider extra gardening and inspection costs as part of the financial assessment;
• charged for a period when Mr D was in hospital and later died. Ms C says there should be no payments for care between 24 November and 5 December 2022.
2. Ms C says Mr D’s estate should not be liable for arrears that have accrued because of the Council’s failures to provide charging information and assess his charges properly.

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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 significant injustice, or that could cause injustice to others in the future 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 with Ms C and considered information she sent. I made enquiries of the Council and considered its response. I considered the:
• Care Act 2004 and the associated Care and Support Statutory Guidance;
• Care and Support (Charging and Assessment of Resources) Regulations 2014;
• case notes;
• care contracts;
• charging assessments.
6. Ms C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

7. Mr D was living in the community in another Council area. Following a stay in hospital Mr D moved into a residential care home. Mr D had a second hospital admission from the care home and asked Calderdale Metropolitan Borough Council, the “Council”, to complete an assessment in July 2022 as the care home where he was now living was in its area.

What should have happened?

Charging for permanent residential care

8. 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.
9. 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. 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.

Deferred Payment Scheme

10. If a home is included in the means test, a person may be able to delay selling it to pay care fees by entering into a “Deferred Payment Scheme”.  This is where the council makes a legal agreement to provide financial support for care costs, on the condition they will be repaid from the property at a later date.

The 12-week property disregard

11. A council must disregard the value of a person’s property in their financial assessment for the first 12 weeks of a permanent care home placement.

Top-up payment

12. If no suitable accommodation is available at the amount identified in the personal budget, (the amount the Councils says is needed to meet assessed needs) the council must arrange care in a more expensive setting and adjust the budget to ensure it meets the person’s needs. In such circumstances, the council must not ask anyone to pay a ‘top-up’ fee. A top-up fee is the difference between the personal budget and the cost of a home.
13. However, if a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if:
• the person can find someone else (a ‘third party’) to pay the top-up; or
• the resident has entered a deferred payment scheme with the council and is willing to pay the top-up fee themself.
14. In such circumstances, the council needs to ensure the person paying the top-up enters a written agreement with the council and can meet the extra costs for the likely duration of the agreement.

Calderdale Council booklet “Paying for your care and support”

“Household expenditure

15. We will need information about your housing costs, so we can consider these in your financial assessment. These include… service charges”
16. “You will still need to pay towards your care home placement from your income. If you have expenses to maintain your property, you can keep up to £144 per week from your income for this.”

What happened

17. Mr D returned to the care home and on 1 September 2022 a social worker started an assessment for Mr D, and concluded he was eligible for residential care.
18. On 14 October a new social worker emailed Ms C confirming a discussion she had about deferred payment schemes with Mr D. The social worker included a link about the deferred payment scheme and information about financial assessments. The social worker told Ms C to contact the financial assessment team for more information and on 20 October sent Ms C a “Paying for Care” handbook. A phone note for 21 October says the social worker explained top-ups and Ms C commenting that she did not think her father would want family members topping up payments for his care. Ms C received and returned a financial assessment form to complete on behalf of Mr D.
19. The Council agreed a deferred payments scheme. It also agreed a 12 week property disregard which began on 1 September when the first social worker assessed Mr D, to 24 November. Mr D returned to hospital and the Council assessed he needed nursing care. It agreed to fund a nursing home placement from 2 December 2022. Mr D moved into a nursing home on 15 December and on 23 December sadly passed away.
20. The social worker notes on 19 January 2023 discussion about payment for care which included, Mr D’s contribution and a third party contribution which the social worker records Ms C agreed to pay. The social worker sent Ms C a placement agreement on 30 January and a third party contribution agreement. The email says, “As we discussed …… the 3rd party top up will be £201.31 weekly”.
21. Ms C signed the contracts and paid for the 3rd Party contribution to the care home which invoiced her directly. The agreements I have seen contain no figures about what the individual contributions were. Ms C says she thought this was her father’s contribution and the Council had not explained that she would have to contribute towards her father’s care. Ms C says the payment she made was what she thought was her father’s contribution. She says this also is in line with what the contract said in terms of the Council’s contribution to the care being £573.69.
22. On 20 February 2023 the Council sent Ms C a schedule of payment periods for Mr D, it apologised for a previous error. Ms C says these calculations are wrong as the Council has failed to properly consider ongoing gardening costs and maintenance costs. The Council has allowed £1.92 per week for gardening costs and £11.40 for house insurance. Ms C says this doesn’t consider an amount owed of £400 for gardening and £600 for house insurance.

Was there fault causing injustice?

23. The Council assessed Mr D in September 2022 as needing residential care. At this point it should have completed a support plan, financial assessment and put in place the relevant agreements and contracts. This includes the deferred payment agreement, the placement agreement and if relevant a third party top up agreement. The Council did not do this in a timely manner and the delay amounts to fault.
24. Phone records and emails evidence the Council told Ms C about a top up, but there is no evidence it told Ms C until much later about how much this would be and assessed whether she could pay this. The top up was over £200 a week and therefore notable, the failure to take this action was not in line with the Care and Support Statutory guidance and is fault. The Council did not provide Ms C an alternative to paying a top up. I consider on balance had the Council provided Ms C with information that she personally would be responsible for a £200 per week top up she would not have agreed.
25. The placement agreement itself is unclear as it does not specify each party’s liability. Although Ms C had completed and returned the financial assessment in October 2022 the Council did not tell her what Mr D’s contribution should have been until February 2023. This is after the social worker asked Ms C to sign the contracts.
26. There is also no evidence the Council advised Mr D or Ms C about a first party top-up which would have been an alternative through the deferred payment scheme. The failure to provide proper, timely information about paying for residential care is not in line with the Care Act and is fault.
27. The Council’s assessment of charge does not properly consider Mr D’s expenses, it provides amounts allowed but no explanation about how it has reached these figures and its reason for rejection. While I cannot say what the Council should allow the failure to provide a reasoned decision is fault.
28. Ms C says she thought she only had to pay the care home invoices as the Council was paying the difference. Ms C says she paid these in good faith and did not understand there was any further contribution. While I consider there was fault in the Council’s actions Ms C was aware that Mr D would have to make a contribution towards his care fees. I am therefore unable to say the Council should waive all the bill. I do however consider on balance had the Council acted correctly Ms C would not have entered an agreement to pay a top up. I therefore consider as part of the remedy the Council should reduce the outstanding balance by the amount Ms C has paid by a top up.
29. I find no fault in the Council charges continuing while Mr D was in hospital. This is usual. Mr D’s room remained his until the Council assessed he needed nursing care at which point, he could not return as the care home could not meet his nursing needs.

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Agreed action

30. I have found fault in the actions of the Council which has caused injustice. I recommended and the Council agreed to take the following actions to remedy the complaint.
31. Within one month of the final decision the Council should:
1. apologise to Ms C for the failures I have identified in this statement;
2. pay Ms C a symbolic payment of £150 for her time, trouble and frustration pursuing the matter has caused;
3. deduct payments Ms C has made to the care home directly from the outstanding bill owed by Mr D’s estate to take into account Ms C was not properly advised about the charge, and had no other option because of the Council’s delays;
4. make a decision on added costs such as gardening and home maintenance raised by Ms C and if necessary, amend the outstanding charges to include these costs;
32. Within three months of the final decision the Council should:
1. review its current contract to make clear the liabilities of each party;
2. remind staff to clearly explain top-ups;
3. review the delays in the time taken to financially assess Mr D to help prevent future reoccurrence.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I consider there was fault in the Council’s actions which caused injustice. I consider the actions above are suitable to remedy the complaint. I have completed my investigation and closed the complaint on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman