Summary: There was fault by the Council. The Council did not tell a family before a one to one carer was put in place for a relative in a care home. A financial assessment then determined the relative should self fund their own care. Before the complaint was considered by the Ombudsman, the Council apologised and funded the one to one carer for an initial six weeks. This remedies the injustice to the family for the initial poor communication.

The complaint

1. The complainant, who I shall call Ms X, complains that her family were not consulted about 1-1 care for her late mother before the care started.
2. Ms X explains that they have received an invoice for this care, which they did not agree to pay.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 read the papers put in by Ms X and discussed the complaint with her.
6. I considered the Council’s comments about the complaint and any supporting documents it provided.
7. Ms X and the organisation 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

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. 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 it appears a person may be eligible for NHS Continuing Healthcare (NHS CHC), councils must tell the relevant integrated care system (ICS). NHS CHC is a package of ongoing care arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care. Such care is provided to people aged 18 years or over, to meet needs arising from disability, accident or illness.
12. The council may consider a resident has deliberately deprived themselves of an asset to reduce the charges they are asked to pay. The council should consider whether deprivation has occurred, what its purpose was, and the timing of that deprivation. Having considered the facts the council may decide to treat the resident as still owning that asset.

Key facts

13. Ms X’s late mother, Mrs Y, was in residential care. Mrs Y funded her own care.
14. A letter dated 14 June 2023 to Ms X’s sister says ‘we have now undertaken a detailed review of the application for assistance with funding Mrs Y’s residential care. The outcome of that review is the Council has deemed you are not eligible for support with funding care as we consider you to have notional assets over the upper capital threshold of £23,250’. The letter explained that Mrs Y’s house had been sold after she moved into the care home and £150,000 had been placed in a discretionary trust. The Council considered the desire to avoid paying care fees was a significant factor in setting up the discretionary trust. The Council decided the notional value from the discretionary trust and the gifts made to family members were deprivation of assets.
15. There is a file note of a conversation between the Council and Ms X’s sister dated 29 June 2023. The file note says ‘Ms X’s sister was advised that social care had agreed a 1-1 carer on a temporary basis’. Ms X says they were never informed this 1-1 care was on a temporary basis and they were not offered an alternative.
16. A file note of a social workers conversation with Ms X’s sister on 20 July says ‘I explained that 1-1 support was in place for Mrs Y at the care home, given consistent concerns and incidents raised by the home. I advised that at the time, management approval was sought, as from the information we were aware of, we were understanding that funding would be picked up by the Council. I advised following the 1-1 being approved, we were made aware of the letter received from family. I advised this is the reason we did not contact the family at the time. I have been informed that at this time Mrs Y would be liable for charges of the 1-1’. The notes say ‘Ms X’s sister did say that despite her disagreeing with the funding decision, she is in agreement for the 1-1 to be in place’.
17. The Council said it would waive the charges for the 1-1 care from 2 June to 14 July 2023. Mrs Y received Continuing Health Care (CHC) funding from 25 August 2023. The Council has invoiced Mrs Y for the cost of the 1-1 care from 15 July until 24 August 2023. Ms X disputes the costs of the 1-1 care for this period.
18. The Council did send an invoice with the incorrect dates on in February 2024. It has apologised and sent a corrected invoice.

My analysis

19. Ms X says in her complaint the family were not informed they would need to pay the cost of the 1-1 care until 21 August 2023 and were not aware of the cost until this date.
20. In response to my enquiries the Council said ‘the social work team didn’t contact the family at the time of the urgent request for additional support. This was an error on our behalf as we presumed that there would be no financial implication for Mrs Y as they were unaware of the investigation being done by the finance team regarding deprivation of assets’.   
21. All the evidence shows that Mrs Y needed 1-1 care, this does not seem to be in dispute. Ms X has also not complained to the Ombudsman about paying the weekly costs of the residential care home.
22. The Council did not contact the family at the beginning of June when the care home requested more funding. The Council has said that this was an error. I find fault by the Council, as it did not communicate the decision to the family at the time. The Council apologised in response to Ms X’s official complaint and explained that at this point the Council had agreed it would pay the first 6 weeks of the 1-1 care. So, the injustice from this fault has already been remedied by the Council. The Council apologised and funded the care for the first 6 weeks.
23. After a financial assessment, the Council wrote to the family on 14 June 2023 to say that Mrs Y would need to fund her own care. The Council also told Ms X’s sister on the telephone that a 1-1 carer would be in place in June 2023. The social worker’s notes show she told Ms X’s sister on the telephone on 20 July that the family would be liable for the charges of the 1-1 care.
24. I find no fault in the Council’s decision to charge Mrs Y for the cost of the 1-1 care from 15 July until 24 August 2023. The financial assessment determined that Mrs Y was above the upper capital limit and so should self fund her care. The family was aware of this on 14 June and were specifically told on 20 July that they would need to pay for the 1-1 care also. Ms X says the family were not aware they would have to pay for the 1-1 care until 21 August, but there is evidence from the Council’s file notes that they were told before this date.

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Final decision

25. I have completed my investigation of this complaint. This complaint is upheld, I have found fault and injustice. I am satisfied that remedy already offered by the Council is sufficient to remedy any personal injustice and that a service improvement is not required.

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Investigator's decision on behalf of the Ombudsman