Summary: There is no evidence of fault in the way the Council backdated the charges for Mrs X’s placement at the care home.

The complaint

1. Mr A (as I shall call him) complains about the way the Council backdated his mother’s care home fees to the date of her admission.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I considered the written information provided by Mr A and the Council. I spoke to Mr A. Both Mr A and the Council had an opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

5. 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.
6. 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.
7. 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.
8. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. 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' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
9. There are two types of LPA.

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.

What happened

10. Mrs X was discharged from hospital on 5 October 2021, three days after an operation on a lower limb fracture. She was discharged to a care home.
11. On 6 October a social worker visited Mrs X to carry out an assessment. She recorded, “During the assessment (Mrs X) showed a good understanding of her current care and support needs and how these can be met”.
12. The social worker explained to Mrs X that the short-term funding for the care home placement would end on 6 October and she asked Mrs X if she had assets over the £23,250 threshold. Mrs X said she did not know. The social worker asked if anyone helped Mrs X with her finances and she said no, she managed them herself and they were not her family’s business. The social worker recorded, “We discussed that if she was over the financial threshold she would have to self fund the placement, and if she was under would be required to complete a financial assessment to work out a contribution towards care.” The social worker emphasized the importance of Mrs X finding out if she was over or under the threshold.
13. The Council wrote to Mrs X at the care home on 21 October because of the uncertainty about her finances. It explained how to complete the financial assessment statement and what evidence it needed. The Council continued to fund the care home placement.
14. The Council says there were delays over the next few months due to safeguarding investigations and an outbreak of Covid. The Council’s records show that Mrs X had some cognitive decline. She started to ask for her son Mr A to be present at assessments.
15. Mr A contacted the social worker on 21 June asking for assistance with completing the financial assessment. The social worker’s notes record, “Discussion held regarding finances. As (Mrs X) is significantly over the threshold she and her family have agreed for the local authority to stop paying the care home fees from midnight tonight. He will call (the care home) tomorrow to inform them that (Mrs X) wants to be invoiced directly from 22/06/2022. I informed (Mr A) that the finance team will send out the invoice for the care home fees paid up to the 21/06/2022”.
16. Mrs A started paying for her own care from 22 June. The Council’s records show a conversation between Mr A and the social worker in July, when he said the fees were higher than he had expected but he confirmed Mrs X was very settled at the home.
17. In January 2023 the Council sent Mrs X an invoice for the care home fees for October 2021 to June 2022, a total of £19,130.
18. In March 2023 Mr A contacted the Council disputing the invoice. He said he had believed from what the social worker said to him in June 2022 that Mrs X would start paying her own fees from March 2022 not October 2021. He said he held power of attorney for Mrs X’s finances.
19. Mr A complained formally to the Council in April and a team manager investigated the matter and responded to him. She said the Council had not been aware of the LPOA and she pointed to a case recording in April 2022 by the social worker which read, “(Mrs X) and her sons have the information required for LPOA and are currently looking into putting this in place”. She asked for copies of the documents. In respect of the fees, she said, “I have been able to establish that the invoice that you have received covers the period from 06/10/21 until 21/06/22. During this period (Mrs X) has been assessed as paying full cost of her care placement due to both being over the capital threshold and there being a non-disclosure of her financial circumstances.”
20. Mr A complained to the Ombudsman. He said the social worker had assessed Mrs X when she was still recovering from sedation after the operation and was confused about what she said.
21. The Council says its searches have confirmed Mr X has held LPOA for Mrs X’s finances since 2013.

Analysis

22. Mr A believes the social worker told him the family could start paying from March 2022 but that is not what the Council’s records show.
23. Mr A says the social worker should not have assessed Mrs X when she was still feeling the after-effects of sedation from her operation. The records show the social worker assessed that Mrs X showed a good understanding of her situation and did not want her family involved at that time. In any event, the date of the assessment made no difference to the fact that Mrs X could fund her own care.
24. It took a long time for the Council to send out the invoice for the fees, but I cannot see that delay caused any injustice.
25. There is no reason for Mrs X not to pay the care home fees from 6 October 2021, as she has always had assets over the upper threshold.

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Final decision

26. I have completed this investigation: there was no fault on the part of the Council.

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Investigator's decision on behalf of the Ombudsman