Summary: The complainant (Mr X) said the Council failed when carrying out a financial assessment and the Deferred Payment Agreement (DPA) process for his late father (Mr Y). Mr X also complained about the way the Council dealt with his complaint. We found fault in all matters complained about. This fault caused injustice to Mr Y and Mr X. The Council agreed to apologise, pay to Mr Y’s estate part of the residential nursing fees which would have not been incurred if not for the Council’s failings and make payments for Mr X’s distress and time and trouble. The Council also agreed to carry out some service improvements.

The complaint

1. Mr X says the Council failed to:
• Complete a financial assessment and the DPA process for Mr Y without delays;
• Provide him with advice on financial assessments and DPAs;
• Send him a copy of Mr Y’s financial assessment;
• Keep proper records;
• Maintain proper communication between its various departments.
2. Mr X also says the Council’s response to his complaint included some factual errors.
3. Mr X says the Council’s failings resulted in Mr Y remaining on a higher self-funding rate for his residential care for longer. This negatively affected Mr Y’s estate and was very distressing to him and his wife.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I spoke with Mr X and considered the information he provided.
7. I made enquiries with the Council and considered the information it provided.
8. I reviewed the Council’s Adult Social Care (ASC) Charging Policy, Complaints and Representations Policy 2022 and our Principles of good administrative practice issued in December 2018.
9. Mr X 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

Legal and administrative framework

Councils’ statutory duties

10. The Care Act 2014 and the Care and Support (Charging and Assessment of Resources) Regulations 2014 (Regulations) provide details of councils’ duties towards their residents with eligible social care needs and rules for charging for the services provided.
11. When exercising their social care functions councils must follow the Care and Support Statutory guidance (Statutory Guidance) issued by the Department of Health and Social Care, which is based on the Care Act 2014, unless they have very good reasons not to. They should also follow the Regulations.

Financial assessments

12. Where a local authority has decided to charge, it must carry out a financial assessment of what the person can afford to pay and, once complete, it must give a written record of that assessment to the person. This could be provided alongside a person’s care and support plan or separately, including via online means. (Care and Support statutory guidance paragraph 8.16)
13. Financial information and advice is fundamental to enabling people to make well-informed choices about how they pay for their care. The local authority service should include the following aspects of financial information and advice:
• understanding care charges
• ways to pay
• money management
• making informed financial decisions
• facilitating access to independent financial information and advice
• the cap on care costs, when preparing for its introduction in 2020 (Care and Support statutory guidance paragraphs 3.36 and 3.41)
14. Councils should ensure that information supplied is clear. Information and advice should only be judged as clear if it is understood and able to be acted upon by the individual receiving it. Information and advice provided within the service should be accurate, up-to-date and consistent with other sources of information and advice. (Care and Support statutory guidance paragraphs 3.19 and 3.20)

Charging

15. When the Council arranges a care home placement, it has to follow charging rules set up in the Regulations when undertaking a financial assessment to decide how much a person has to pay towards the cost of their residential care. The rules state that people who have over the upper capital limit (£23,250) have to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
16. When making decisions on charging local authorities should be clear and transparent so people know what they will be charged. Where a local authority has decided to charge it should explain in the financial assessment how the assessment has been carried out, what the charge will be and how often it will be made. The local authority should ensure this is provided in a manner that the person can easily understand, in line with its duties on providing information and advice. (Care and Support statutory guidance paragraph 8.2 & 8.16)
17. People who own their own home can use the value of their property to pay for their residential care fees through a deferred payment agreement (DPA) with their local council. A DPA is a long-term loan secured against the person’s home. Under the agreement the council will pay the care home costs and the loan will be repaid when the person chooses to sell their home or after their death. (Care and Support statutory guidance paragraph 9.7)
18. DPAs are designed to prevent people from being forced to sell their home in their lifetime to meet the cost of their care. Local authorities must offer them to people who meet the criteria:
• someone assessed as needing permanent residential care;
• someone with less than £23,250 in assets, excluding the value of their home;
19. someone who’s home is not disregarded in their financial assessment. (Care and Support statutory guidance paragraph 9.7)

Complaint handling

20. The Council’s Complaints and Representations Policy 2022 explains the complaint handling process when the Council receives a complaint about its Adult Social Care services.
21. When the Council receives a complaint it will:
• Confirm its receipt;
• Tell the complainant you long it will take to look into the matters complaint about;
• Tell the complainant about any support available to them.
22. Any ASC complaint will be responded within one month. Where the request is complex the Council may extend this period up to a further two months. The Council will tell the complainant within one month if it needs to apply this extension.

What happened

Background

23. Mr Y was diagnosed with dementia in 2016. Mr X held a Power of Attorney for his father’s health and finance from 2017.
24. Following his discharge from a hospice Mr Y was placed at the Nursing Home at the beginning of September 2019. Until August 2021 Mr Y’s residential care was funded by the Continuing Health Care (CHC). Mr X appealed the National Health Service (NHS) decision to withdraw this funding.

Financial assessment

25. In mid-August 2021 Mr Y’s social worker (Social Worker 1) provided Mr X with a weekly fee for Mr Y’s place in the Nursing Home of £891.10. She also advised that as Mr X declined the offer of a financial assessment, his father would be self-funding at full cost.
26. At the end of August Mr X asked Social Worker 1 to proceed with the financial assessment. He sent some details of Mr Y’s financial circumstances, including the information on his flat being rented out, and asked Social Worker 1 to explain details of the financial assessment process.
27. Social Worker 1 recognised the receipt of Mr X’s request for a financial assessment in mid-September and told him one of his colleagues would complete it.
28. On 19 January 2022 Mr Y’s funds decreased below £23,250.
29. In mid-March 2022 Mr X contacted Social Worker 1 and the Council’s financial assessment team, asking for an urgent assessment due to Mr Y’s funds decreasing below £14,000. The next day Social Worker 1 recognised the receipt of this correspondence. After another communication to Social Worker 1, six days later the financial assessment team scheduled a telephone assessment for the beginning of April.
30. In response to my enquiries the Council provided the undated financial assessment document with the charging information leaflet attached, including details of the DPA applications. In its response to Mr X’s complaint the Council told him it had carried out Mr Y’s financial assessment in the fourth week of March 2022. Responding to my enquiries the Council told me at the end of March 2022 it had sent Mr Y’s financial assessment document and a DPA form to Mr X. Mr X said he had not received this document or any advice about financial assessments or DPAs.

Deferred Payment Agreement

31. Mr X asked the Council to set up a DPA for Mr Y’s residential care charges in the third week of May and provided some information.
32. A week later the Council’s Income Collection team told Mr X it could not advance his request as Mr Y was on a provisional care contract with the Council. Mr X asked Social Worker 1 for help with this matter. Social Worker 1 passed this correspondence to her manager and told Mr X she was no longer Mr Y’s social worker.
33. In June the Council tried to arrange a meeting with the NHS to discuss funding for Mr Y’s care. The Council was referring to this meeting as a Decision Support Tool (DST) to decide Mr Y’s eligibility for the CHC funding, whereas the NHS told Mr X it was held to discuss funding nursing care (FNC) for Mr Y. Mr X clarified he wanted to participate in a meeting when Mr Y’s CHC funding would be discussed but did not have to be present at any FNC discussions. As Mr X could not attend a meeting arranged for the end of June, the Council postponed this meeting to mid-August.
34. Mr X contacted Social Worker 1 and the financial assessment team again in mid-July expressing his concerns about the insufficiency of Mr Y’s funds to pay for his residential care. Mr X stopped paying the Nursing Home fees from the end of May due to the lack of funds in Mr Y’s estate. Mr X reiterated his wish to enter a DPA.
35. At the meeting in mid-August, which confirmed Mr Y’s ineligibility for the CHC funding, the Council stated it would progress its offer of a DPA. Mr Y’s new social worker (Social Worker 2) told Mr X the Council’s finance team would contact him to complete this process.
36. At the beginning of September the Council issued a purchase order starting from the fourth week of August for the nursing care for Mr Y at a weekly rate of £773.71.
37. At the beginning of October Social Worker 2 told Mr X he needed to apply for a DPA through the Council’s property team. Mr X replied that he had already applied for a DPA and provided all the information many months before. He asked Social Worker 2 to find this information and share with the relevant teams. Social Worker 2 then stated Mr X should contact the Income Collection team rather than the property team.
38. A member of the Income Collection team called Mr X at the beginning of December. She followed this conversation with an email, explaining the details of a DPA. A few days later a senior member of the finance team contacted Mr X, sending him the most recent financial assessment for Mr Y.
39. Mr Y died in the second week of January 2023.

Payments for Mr Y’s residential nursing care

40. From the beginning of September 2021 to the end of May 2022 Mr Y self-funded his residential care at a rate of £165.24 per day.
41. In view of the lack of funds in Mr Y’s estate from 1 June to 23 August 2022 the Nursing Home continued providing its services to Mr Y despite no payments made. Care fees for this period amounted to £14,307, so £172.38 per day.
42. From 23 August 2022 until Mr Y’s death in early January 2023 the Council was paying Mr Y’s Nursing Home fees. The fees were calculated in accordance with the Council’s reduced rate contract with the Nursing Home at a rate of £110.43 per day.
43. In February 2023 the Council’s Income Collection team asked Mr X to pay the outstanding charges for his care in the Nursing Home from the end of August 2022 until the beginning of January 2023 totalling £15,460.20.

Complaint

44. In response to the Council’s request for the payment of £15,460.20 in mid-February Mr X raised a complaint. He said he had tried to get a financial assessment and DPA for Mr Y from the end of August 2021.
45. The Council responded at the end of March with the information Mr X’s complaint had been sent to the Council’s Customer Service complaints team a week after its receipt. Following some further correspondence from Mr X and the Member of Parliament’s involvement Mr X found out the Council would resolve his complaint by the end of April.
46. At the end of April the Council’s Customer Service complaints team told Mr X it would respond to his complaint in the first week of May. A few days after this date the Member of Parliament contacted the Council again on Mr X’s behalf.
47. The Council responded to Mr X’s complaint in mid-June, partially upholding his complaint but refusing to disregard the outstanding care fees of £15,406. The Council accepted it had failed to carry out a financial assessment for Mr Y following Mr X’s request at the end of August 2021.

Analysis

Financial assessment

48. The Council’s failed to:
• carry out Mr Y’s financial assessment in 2021 after being alerted to the risk of the decrease of his funds; the Council has accepted this failing in its response to Mr X’s complaint;
• provide Mr X with comprehensive financial information and advice which would allow him to make informed choices about paying for Mr Y’s care;
• advise Mr X on his right to ask for a DPA in view of the information about Mr Y owning a flat which was rented out.
49. The Council’s failings listed above are fault, which caused injustice to Mr Y. On the balance of probabilities I consider if the Council had started the assessment process in mid-September 2021, it would have completed it within a few weeks. The Council would have sent Mr X information on his options, including his right to ask for a DPA, with the financial assessment. It is more likely than not that Mr X would have asked for a DPA in the autumn of 2021 and based on the eligibility criteria explained in paragraph 18 of this decision a DPA would have started from 19 January 2022 when Mr Y’s funds dropped below £23,250. The cost of Mr Y’s residential nursing care from January 2022 would have been paid at a rate of £110.43 per day rather than £165.24 per day until the end of May and £172.38 per day from the beginning of June.
50. In its comments to my draft decision the Council explained that although it had initially planned to carry out Mr Y’s financial assessment at the beginning of April, at Mr X’s request the date had been changed and the assessment had taken place in the fourth week of March. The Council stated it had sent the document to Mr X six days later. Mr X said he had not received this document or any information, which the Council claimed had been attached.
51. I cannot decide whether the Council sent Mr Y’s financial assessment and advice attached to Mr X. The document provided by the Council to us is addressed correctly to Mr X. There is no requirement for the Council to send its correspondence by registered mail. The fact that Mr X did not receive the Council’s correspondence does not mean the Council had failed to send it.

Deferred payment agreement

52. Mr X formally asked for a DPA in mid-May 2022. Although I accept as part of its decision-making the Council wished to establish whether Mr Y’s care would be funded by the NHS, I found the following failings in the way the Council carried out this process for Mr Y:
• Lack of comprehensive information and advice provided at the beginning of the process. The Council claimed it had sent DPA information to Mr X in March. Even if this had happened once Mr X formally asked for a DPA for Mr Y in May the Council should have checked his understanding of the process and provided more detailed information. This only happened at the beginning of December, seven months after Mr X’s request.
• Lack of communication between various teams in the Council. As a result on many occasions members of the Council’s staff were referring Mr X to different teams to progress his request.
• Significant delays in dealing with Mr X’s request. After the meeting which confirmed Mr Y’s ineligibility for the CHC funding, in the third week of August Social Worker 2 confirmed that the deferred payment process would start and the Council’s finance team would contact Mr X. This only happened at the beginning of December and no action followed.
53. The Council’s failings described above amount to fault, which caused injustice to Mr X. Mr X was confused, spent much time contacting various teams and lacked clarity on the process.
54. I do not consider the Council’s fault regarding the DPA process caused any injustice to Mr Y. This is because from the end of August 2022 the Council funded Mr Y’s residential nursing care as if he had had a DPA.

Complaint handling

55. When handling Mr X’s complaint the Council failed to:
• Tell Mr X how long it would take to look into the matters he complained about;
• Communicate with Mr X during the process of dealing with his complaint and advise him of any delays;
• Explain its reasons for extending the usual timescale of one month when responding to Mr X’s complaint;
• Consider Mr X’s complaint without delays. The Council’s response to Mr X was late by at least one month.
56. The Council’s failings, which are fault, caused injustice to Mr X. He was upset by the lack of the Council’s communication with him and remained uncertain about the outcome of his complaint. He also spent much time contacting the Council and seeking external intervention to prompt the Council to act.

Injustice

57. When assessing the injustice caused to Mr X by the Council’s faults listed above and extending from the end of August 2021 to June 2023 I have considered Mr X’s individual circumstances, including:
• Decline in Mr Y’s health in autumn 2022 leading to his death in early January 2023;
• Mr X’s and his wife’s health problems;
• Bereavement in the family.

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Agreed action

58. To remedy the injustice caused by the faults identified, we recommend within four weeks of the final decision the Council complete the following:
• apologise to Mr X for the injustice caused to him by the faults identified;
• pay £11,445 to Mr Y’s estate to recognise the injustice caused by the delay in carrying out a financial assessment for Mr Y. The Council can deduct this sum from the outstanding fees for Mr Y’s residential nursing care incurred between August 2022 and January 2023 and paid by the Council;
• pay Mr X £250 to recognise the distress caused to him by the Council’s failings;
• pay Mr X £100 to recognise his time and trouble when contacting the Council during the complaint process.

The Council will provide the evidence that this has happened.

59. We also recommend the Council within three months of the final decision:
• Review its process of registering referrals for financial assessments to ensure the Council records any requests for a financial assessment and the date of sending financial assessments with all the attached documents to the service user;
• Review its Deferred Payment Agreement process to ensure:
1. service users receive detailed information tailored to their individual circumstances at the beginning of the process;
2. the Council makes a decision on eligibility without delay;
3. service users have clarity what documents they have to provide for a DPA;
• Improve communication between various teams providing ASC services to ensure there is an exchange of information and communications without involving service users;
• Train its staff dealing with ASC complaints to ensure the compliance with the Council’s Complaints and Representations Policy 2022.

The Council will provide the evidence that this has happened. The evidence should include a flowchart for a DPA process.

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Final decision

60. I uphold this complaint. For the reasons explained in the Analysis section I found fault in the way the Council carried out a financial assessment and a deferred payment process for Mr Y. I also found fault in the Council’s complaint handling. These faults caused Mr Y and Mr X injustice. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman