Summary: Mrs D complained on behalf of her mother Mrs E that the Council had acted unreasonably in the treatment of Mrs E’s capital in a financial assessment for her contribution to care charges. On the evidence available we have not found fault with the decision-making process, but we have found fault with the complaint-handling. We have asked the Council to pay Mrs D £200 and invite her to apply for a new financial assessment from February 2023.

The complaint

1. Mrs D complained that Cambridgeshire County Council (the Council) refused to disregard her mother’s (Mrs E’s) capital from the sale of her former property when carrying out a financial assessment to determine her contribution to social care charges. Mrs D believes the Council has failed to properly consider the law and guidance in the context of the complex financial arrangement Mrs E entered into and failed to advise her properly when care was first discussed. This has caused Mrs E and Mrs D significant distress and uncertainty along with a large bill for care charges which they cannot afford to pay.

Back to top

The Ombudsman’s role and powers

2. 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)
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)

Back to top

How I considered this complaint

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided.

Back to top

What I found

Charging for social care services: the power to charge

5. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
6. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment.
7. Part of that assessment includes deciding how much capital a person has. This includes property, investments and savings, excluding the value of a person’s main home. If the Council decides a person has more than the upper capital limit of £23,250 they will be liable for the full cost of their care. There are a number of circumstances in which capital from property (other than a person’s main home) can be disregarded for 26 weeks (or longer at the Council’s discretion). These include:
• Money acquired specifically for repairs to, or replacement of the person’s home or personal possessions provided it is used for that purpose. This should apply from the date the funds were received.
• Premises which the person intends to occupy as their home where they have started legal proceedings to obtain possession. This should be from the date legal advice was first sought or proceedings first commenced.
• Premises which the person intends to occupy as their home where essential repairs or alterations are required. This should apply from the date the person takes action to effect the repairs.
• Capital received from the sale of a former home where the capital is to be used by the person to buy another home. This should apply from the date of completion of the sale.

What happened

8. Mrs D’s mother, Mrs E has a progressive medical condition and needs support with her personal care needs. Her late husband was her primary carer and they lived in Property A which they owned. It was not suitable for Mrs E’s needs. Mrs D says that she and her husband planned to buy a larger, adapted house with Mrs E and her husband, in order to support Mr E in caring for Mrs E. Mrs D say the family did not intend to ask the Council to put care in place.
9. In 2020 Mr E was diagnosed with a terminal illness and the family decided to hasten their plans to buy a new home. They found Property B and with the help of a bridging loan secured on Property A and Property B, they purchased the property later that year. They then put Property A on the market. The bridging loan had to be paid back within 12 months or both houses would be at risk of repossession.
10. In early 2021 Mrs E’s health professional suggested Mrs D could ask the Council for help with care for Mrs E, given the strain of Mr E’s illness on Mrs D in addition to looking after her own family. Mrs D said she had refused help on multiple occasions because she did not think Mrs E would qualify. A health professional contact the Council on her behalf and Mrs D believes they were given the impression Mrs E would qualify for funding. Mrs D contacted the Council in March 2021. Shortly afterwards Mr E died. The Council referred Mrs E to the physical disabilities team for urgent support. The form said Mrs E had a property on the market, but the sale was secured against the new property.
11. On 19 March 2021 the Council carried out a care needs assessment with Mrs D and Mrs E. Mrs E explained that she lived in a house (Property B) jointly owned with Mr and Mrs D but the other property (Property A) was a down payment for property B and when it was sold the money would go towards paying the mortgage off on property B. The assessment records that the financial assessment process was discussed in order to determine if Mrs E would have to make a contribution towards the cost of her care.
12. The Council assessed that Mrs E required a care package of several visits a day. The care started in early April 2021. Mrs D says that around this time the Council advised Mrs E’s health professional that Mrs E would not have to pay for the cost of her care as her property would be disregarded. She says if they had known Mrs E would have to pay for her care, they would have refused all social care involvement.
13. In May 2021 the Council referred the case for a financial assessment. The referral form said Mrs E was 100% Council-funded and was not funding the care herself. The Council sent Mrs D information leaflets about paying for care and a financial assessment form. The Council also gave some advice to Mrs D over the telephone about completing the form. This included the following:

“The outcome was that I explained we would need to receive the completed FAQ, all relevant paperwork/evidence, a covering letter with any explanations she feels would be helpful. I explained there is a possibility of a waiver/reduction/property disregard but we would need all the paperwork before I could say whether any were appropriate and the decision(s) would be made by the case team.”

14. In July 2021 the family sought financial advice as Property A had not sold and they were worried about how they were going to pay off the bridging loan later in the year. They decided to take out a different type of mortgage on Property A and let the property to tenants. With this mortgage in addition to a mortgage on Property B, and other forms of finance, they paid off the bridging loan. Even with the mortgage on Property A there was still equity in the property significantly above £23,250.
15. In November and December 2021 Mrs D requested copies of the financial assessment forms electronically. In May 2022 the Council chased her for return of the forms, which she submitted in early June 2022. The Council contacted her at the end of June 2022 to say it was unable to access some of the documents she had sent, and Mrs D agreed to send them by post. The Council chased her again in mid-August 2022. Mrs D said at this point Mrs E was having an assessment for continuing healthcare (CHC) funding and so the financial assessment was not appropriate. The Council said the period prior to this was still chargeable and a financial assessment was still required. It extended the deadline to 5 September 2022. On 30 September 2022 the Council spoke to Mrs D by telephone. Mrs D said there was too much information to return by post. The Council again tried to access the original electronic information. Around this time a sale was agreed for Property A.
16. In mid-October 2022 the Council concluded that Mrs E was not eligible for council funding of her care charges because she had capital in excess of £23,250. Its reasoning was as follows:

“As Mrs [E] owns a second property which does have equity of more than £23250 in it we would see this as capital and as such Mrs [E] will be liable for the full cost of her care services. Despite having a larger mortgage on [Property B] than the equity left in [Property A], we cannot guarantee that [Mrs E] will use all of the equity in [Property A] to pay the mortgage of her current home when she sells this. We would view this in the same way as another person who may own only one property with a large mortgage but may have capital/investments elsewhere. We would still count this capital/investment despite the person having a mortgage. It would only be when that person used their capital/investment to pay towards their mortgage that we as a Local Authority could potentially disregard this.”

17. It notified Mrs D of the decision on 14 October 2022. Mrs D contacted the Council to say she could not afford to pay the debt and the Council advised her to appeal the decision. Mrs D submitted a formal complaint on 2 November 2022. On 19 January 2023 the Council said it had concluded its investigation but was waiting for a copy of Lasting Power of Attorney from Mrs D. Mrs D then submitted a data protection complaint.
18. In February 2023 the sale of Property A completed, and the Council responded to Mrs D’s data protection complaint and the complaint about the financial assessment. It did not uphold the complaint about the financial assessment. Mrs D was dissatisfied with the response and escalated her complaint. In March 2023 the Council agreed to carry out a management review of the decision on Mrs E’s financial assessment. It said it would complete this within three months.
19. On 13 October 2023 the Council completed the management review and sent its conclusions to Mrs D. It upheld its original decision on the financial assessment. It said that it could not disregard Property A from the assessment of Mrs E’s capital because:
• It was not Mrs E’s main or only home and she was not in a care home.
• It was not money acquired specifically for repairs or replacement of her home.
• It was not a property which she intended to occupy as her home where essential repairs or alterations were required.
• It was not capital received from the sale of a former home where the capital was to be used by the person to buy another home.
20. Mrs D then complained to us.
21. In January 2024 Mrs E started to receive CHC funding from the NHS with effect from February 2023. Mrs E owes approximately £80,000 in care charges for the period prior to this. Mrs D says this figure is likely to be incorrect due to a successful appeal regarding the CHC funding
22. In response to my enquiries Mrs D said the equity from the sale of Property A was used to fund essential disability adaptations to Property B and other key repairs. In addition, it paid off a loan to a relative (for the bridging loan) and some of the outstanding mortgage on Property B. The Council said that no further financial assessment has been requested since Property A was sold.

Analysis

Pre-assessment advice

23. I understand the care package for Mrs E was arranged at a time of immense sadness and distress for the family and that Mrs D believes she was advised during this period that Mrs E would not have to pay for her care. However, the only written information supporting this is the content of the original referral form for a financial assessment which records Mrs E as being fully funded by the Council. On the other hand, the case records contain clear advice from the financial assessment team (after it had received the referral form) that Mrs D should submit the form with all her evidence of the Council to consider. It only said a disregard or waiver may be appropriate, but it could not decide until it had full details of all the circumstances.
24. I do not consider it was reasonable for Mrs D to have concluded at this stage (before the financial assessment had been done) that Mrs E would not be liable for the cost of her care.

Delay in carrying out financial assessment

25. The delay in carrying out the financial assessment was due to Mrs D not returning the forms for a year (June 2022) and then not providing all the accompanying evidence until September 2022. Once it received all the information it carried out the assessment within two weeks. I have not found fault here.

Decision on capital

26. The Council has explained with reference to the legislation why it has not disregarded Property A from its assessment of Mrs E’s capital. I understand Mrs D strongly disagrees with this decision and believes the Council should appreciate the whole of the difficult financial situation they were placed in and the fact that Mrs E cannot afford to pay the outstanding care charges. But I have not identified fault in the way the Council has assessed the capital. The equity from Property A since Mrs E started to receive care in April 2021 has always been well in excess of £23,250 and does not appear to fit into any of the disregard categories.
27. However, since the property was sold in February 2023, Mrs D says the equity has been used for carrying out essential disability adaptations and repairs to Property B (her main home) and for paying off debts. I would suggest Mrs D submits this information, along with evidence of the expenditure, to the Council so it can carry out a new financial assessment and consider whether Mrs E’s capital has reduced below £23,250.

Delay in responding to Mrs D’s complaint

28. Given that Mrs D had been corresponding with the Council about Mrs E’s care and finances since March 2021, I do not consider it was reasonable for the Council in January 2023 to insist on the lasting power of attorney before sending her the complaint response. This was fault which caused Mrs D distress and time and trouble in submitting a further complaint about a possible data breach given that it no longer considered Mrs D should be acting on behalf of Mrs E.
29. The Council took seven months rather than three to complete the management review. This was fault which prolonged the uncertainty for Mrs D regarding the care charges.

Back to top

Recommended action

30. In recognition of the injustice caused to Mrs D I recommend the Council within one month of the date of my final decision:
• apologises to Mrs D and makes a symbolic payment to her of £200; and
• invites her to request a new financial assessment in respect of Mrs E’s circumstances from 10 February 2023.
31. The Council should provide us with evidence it has complied with the above actions.

Back to top

Draft decision

32. Subject to further comments by Mrs D and the Council, I intend to complete my investigation on this basis

Back to top

Investigator's decision on behalf of the Ombudsman