Summary: The Council failed to consider Care and Support Statutory Guidance when reviewing Ms X’s financial assessment for her care contribution. The Council will apologise and reconsider its decision not to increase her personal expenses allowance to include an amount for basic heating charges over winter.

The complaint

1. An advocate for Ms X complained the Council never completed a full and inclusive assessment of Ms X’s finances when she went into a care home. This caused confusion, distress and financial hardship.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. 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)
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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What I have and have not investigated

5. Ms X’s complained to us at the start of November 2023. I have investigated from November 2022 to the end of October 2023. Things which happened before November 2022 are late and there is no good reason for the delay. I have taken into account:
• Ms X used our service in 2021. She received our factsheet at the beginning of that investigation. The factsheet explains we usually expect complainants to complain to us within 12 months of becoming aware of a matter. And the final decision on that complaint (dated March 2022) explained our approach to late complaints.
• Evidence from the Council indicates Ms X told the Council in February 2022 that she intended to complain to us about the financial assessment. Yet she waited almost two years before doing so. There is no good reason for the delay.

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How I considered this complaint

6. I considered the complaint to us and documents set out later in this statement.
7. Ms 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

Relevant law and guidance

8. The charging rules for residential care are in the Care and Support (Charging and Assessment of Resources) Regulations 2014. Councils should also have regard to the Care and Support Statutory Guidance (CSSG).
9. A temporary resident is a person a care or nursing home where the agreed plan is for their stay is unlikely to exceed 52 weeks, or in exceptional circumstances, unlikely to substantially exceed 52 weeks. Because the person is expected to return home, the cost of their main home is disregarded in the financial assessment. (CSSG paragraph 8.34)
10. Those in care homes (whether as temporary or permanent residents) will contribute most of their income towards care home fees. A council must leave a person with a personal expenses allowance (PEA) for personal items like clothes. The PEA is an amount set by the government. Councils have discretion to allow a higher PEA in individual cases such as when a person has costs of maintaining a home. (CSSG, paragraph 8.35)
11. Regular charitable payments must be disregarded. (CCSG Annex C, paragraph 32)
12. A charitable payment which is not made regularly is treated as capital. (CSSG Annex C paragraph 31)
13. Where a person’s property is disregarded, the council should consider whether the PEA is enough to enable them to meet costs. Allowances should be made for fixed payments like mortgage, rent and council tax, building insurance, gas, electricity and water including basic heating during winter and reasonable property maintenance costs. (CSSG Annex C, paragraph 46 (d))

Summary of key facts

Background

14. Ms X lives in a care home. The Council told us Ms X considers she will return to good health such that she will be able to return to her home. As a result, the Council says it is treating her as a temporary resident for the purposes of charging and it has disregarded the value of her home in its financial assessment. A relative lives in the property.

What happened

15. In December 2022, Ms X emailed the finance team saying she had further evidence from her electricity supplier and other bills related to her property. The finance team replied saying it was liaising with her advocate and asked them to send any documents in to the finance team for a review of her financial assessment.
16. At the start of February 2023, Ms X’s advocate emailed the finance team about vet’s bills, a large electricity bill and costs for repairs to her wheelchair. The finance team replied saying the Council had already made an allowance of £4200 for the electric bill up to September 2022 and an additional ongoing weekly amount. The finance team explained the Council wouldn’t make an allowance for heating costs as Ms X was not currently living in the property.
17. In March 2023, Ms X’s advocate emailed the finance team asking about estimated electric bills, water bill and vet’s fees. The finance team replied saying there was already an allowance for electricity based on actual usage and Ms X would need to provide bills for the other things. The email went on to explain these items were at the Council’s discretion.
18. At the end of May, the finance team wrote to Ms X about items she had asked to be considered for an additional PEA. The letter said it had agreed five items in principle and asked her to send in evidence of expenditure for two of those items. The letter went on to say the Council needed electric bills based on actual readings to increase the allowance for electricity. The Council refused a list of other items which included vet’s bills, clothing and postage. It asked Ms X to provide additional evidence of expenses for acupuncture, buildings insurance and electric statements showing actual cost and then it was willing to review her financial assessment. The letter gave Ms X’s current contribution.
19. In the middle of June, the Council wrote to Ms X with a further review of her financial assessment. It included an allowance for acupuncture (having received evidence of payment.) It asked Ms X to provide electric bills and confirmation about a credit to her electric account. The letter gave Ms X’s current contribution.
20. At the start of July 2023, the Council wrote to Ms X setting out its review of her financial assessment. The letter noted Ms X already had allowances for buildings insurance, council tax, electricity, gas and water standing charges. The Council said it had also agreed one off costs for acupuncture, a mobility product, posture wear and a wheelchair taxi. It had applied these costs to the current year’s financial assessment and this gave an extra allowance of £4.63. The Council asked Ms X to provide electricity bills based on actual readings rather than estimated if she wanted an increase to the allowance for electricity. The Council advised Ms X it had not agreed other costs because they were for personal items covered within the standard PEA. The letter included a full calculation of Ms X’s contribution.
21. In the middle of August, the Council acknowledged Ms X’s request for an appeal of her financial assessment and said it would aim to respond within 30 working days. At the start of September, the Council apologised for the delay in dealing with Ms X’s appeal and said it would contact her when it had completed the process.
22. The Council wrote to Ms X in October 2023 saying she needed to provide further information before it could complete the appeal of her contribution. The Council asked questions and asked Ms X to provide bank statements:
• What charities paid her care fees and was it to her or to the care home directly?
• How much in total the charities paid, the dates and what periods were covered.

The Council reminded Ms X she needed to pay her weekly contribution until the appeal was completed.

23. This is the end of the correspondence. At the time the Council replied to my enquiries it had not received Ms X’s reply to the letter described in paragraph 22.

Was there fault?

24. It is not our role to say how much Ms X’s client contribution should be. Our role is to determine whether there has been fault by the Council. To do this, we consider relevant law and guidance. We expect councils to have regard to CSSG when undertaking a financial assessment. Annex C of CSSG gives the Council has discretion to increase the PEA for Ms X as she is a temporary resident in a care home and has costs of maintaining her home.
25. The Council was not at fault in:
• Reviewing Ms X’s case each time she asked for additional items to be allowed to increase her PEA. This process is in line with CSSG. CSSG says the Council should make allowances for council tax, building insurance and electricity. The Council has done this for Ms X and so there is no fault.
• Asking for electricity bills based on actual rather than estimated usage. This is so it can consider a reasonable amount to allow Ms X. Estimated and actual usage might produce different figures.
• Asking Ms X questions about charitable payments she has received to pay off arrears of her care contribution. This is so it can determine whether to treat those payments as capital or income.
• Declining items of clothing, postage and other daily expenses as it explained these items fell within the standard PEA. They aren’t property-related costs.
26. However, CSSG says discretionary PEA awards should include ‘basic heating during winter’. The Council said in an email to Ms X’s representative in February 2023 that it would not make an allowance for heating because Ms X did not live in the property. The Council did not consider Annex C paragraph 46(d) and this is fault causing avoidable uncertainty.

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Agreed action

27. Any further increase to Ms X’s PEA is a discretionary decision for the Council, not for the LGSCO. Our role is to determine fault. Fault includes a failure to have regard to relevant guidance. Where we identify fault, we may recommend a remedy to put the person back into the position they should be in.
28. The Council will, within one month of my final decision:
• Complete a further review or reconsideration of the financial assessment, specifically to consider whether to include an allowance for basic heating costs over winter. The Council should give Ms X the opportunity to submit evidence of those costs.
• Write to Ms X with its decision, including an explanation. If the Council decides Ms X can have a heating allowance, the decision should include consideration of backdating this to November 2022 to reflect the period my investigation covers.
• Apologise to Ms X for the uncertainty caused by its fault.

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Final decision

29. The Council failed to consider Paragraph 46 of Annex C of Care and Support Statutory Guidance when reviewing Ms X’s financial assessment for her care contribution. The Council will apologise and reconsider its decision not to increase her personal expenses allowance to include an amount for basic heating charges over winter.
30. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman