Summary: It was not the fault of the Council that Ms X did not contact it about her mother’s funding status. The Council agreed Mrs X could stay in her current placement without the requisite top-up fee.

The complaint

1. Ms X (as I shall call her) complains that the Council did not backdate the date at which her mother Mrs X fell below the threshold amount for funding her own care. She complains that a social worker initially told her the Council would do so and then changed her mind.

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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 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)
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 information provided by Ms X and the Council. I spoke to Ms X. Both Ms X and the Council had the 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. The financial limit, known as the ‘upper capital limit’, (currently £23,250) 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.

What happened

7. Mrs X initially lived in a care home in a neighbouring authority area. Ms X says that council arranged a deferred payment agreement until Ms X could sell her mother’s house. After that Mrs X became self-funding. The Council says it had no knowledge of Mrs X between 2018 (when it had some contact with the other council about an unrelated matter) and March 2021, by which time Mrs X was resident in a placement in its area. The Council was not aware Mrs X was funding her own care.
8. Ms X says no-one told her of the financial limits. She says it was not until her mother’s assets fell below £7500 in March 2021 that she contacted the Council for help. She says the social worker to whom she spoke explained the Council might be able to backdate funding Ms X says the social worker said the Council “would” be able to backdate funding but the Council’s notes do not reflect that). However, when she spoke to the social worker again a few weeks later the social worker told her this was not possible.
9. Ms X complained to the Council, not only about the decision not to backdate funding but also about the social worker’s handling of her case.
10. A manager responded to Ms X’s complaint. She upheld the complaints about the way the case had been handed but did not uphold the complaint about the decision not to backdate the funding. She said, “(the social worker) discussed this with her managers who advised her that funding can be backdated from the date you contacted the local authority (25/03/2021) and advised that your mother’s savings had reduced to £7,500 and not the date of the assessment.

However, you should have contacted Birmingham City Council as soon as your mother’s savings fell below the threshold of £23,250. Unfortunately, because you notified Birmingham City Council on the 25/03/2021, Birmingham City Council will only backdate funding from this date.”

11. Ms X was unhappy with the response and asked for her complaint to be escalated. She said she did not want her mother to be penalised for her naivete in not realising there was a threshold amount.
12. A complaints manager wrote to Ms X in November 2021. She said “The ASC process is that normally funding will commence once an assessment has been completed and this can take up to 4 – 6 weeks. On this occasion however, it was agreed to disregard the time taken to complete the assessment and, as a gesture of goodwill, start the funding from the date you contacted the ASC Directorate.”
13. Ms X complained to the Ombudsman. She said no-one explained to her when her mother went into care about the threshold amounts. She says the Council has not only not backdated the funding to which she thinks her mother was entitled but sent her invoices for unpaid care contributions which she says were more than her mother’s income.
14. The Council says “According to our financial assessments, (Mrs X)'s charges do not exceed her income. In April 2023, an audit of (Mrs X)'s account revealed that her financial assessment from April 2022, following the national increases to benefit rates, had been calculated incorrectly. So her charges were therefore revised downwards, and backdated.”
15. The Council says that although Mrs X was occupying a room which was more expensive than the amount of her personal budget, it agreed with the care provider to keep Mrs X in that placement rather than require a move to a cheaper home. The top-up fee was waived.

Analysis

16. It is not the fault of the Council that Ms X did not know or make herself aware of the savings threshold below which she could ask the Council for assistance with her mother’s care fees. I recognise Ms X believes the Council should repay the amount she has spent unwittingly but that is not its responsibility.
17. The Council has, to its credit, exercised its discretion to backdate funding to the point of contact (rather than once the assessment was complete). The care home has agreed to waive the top-up fees.

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Final decision

18. I have completed this investigation on the grounds there was no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman