Summary: Mr X complained on behalf of Mr and Mrs Y. Mr X complained about the way the Council dealt with Mrs Y’s care charges. He also complained communication from the Council was poor. Mr X said the matter impacted Mr Y’s health and finances. There was fault in the way the Council did not follow policy consistently and communication was poor. The Council has taken appropriate action to remedy any injustice caused by this fault.

The complaint

1. Mr X complained on behalf of Mr and Mrs Y. Mr X complained about the way the Council dealt with Mrs Y’s care charges. He also complained communication from the Council was poor. Mr X said the matter impacted Mr Y’s health and finances.

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 a Council’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

What I have and have not investigated

4. I have investigated that part of Mr X’s complaint about the Councils actions.
5. I have not investigated any reference to the actions of the health service.

Back to top

How I considered this complaint

6. I read Mr X’s complaint and spoke to him about it on the phone.
7. I considered information provided by Mr X and the Council.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Background information

9. 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.
10. 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.
11. 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.
12. Where it appears a person may be eligible for NHS Continuing Healthcare (NHS CHC), councils must notify 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.
13. Individuals may need care and support provided by their local council and/or services arranged by ICSs. Councils and ICSs therefore have a responsibility to ensure the assessment of eligibility for care and support and for CHC respectively take place in a timely and consistent manner. If, following an assessment, a person is not found to be eligible for NHS CHC, the NHS may still have a responsibility to contribute to that person’s health needs, either by directly commissioning services or by part-funding the package of support. Where a package of support is commissioned or funded by both a council and an ICS, this is known as a ‘joint package of care’. A joint package of care could include NHS-funded nursing care and other NHS services that are beyond the powers of a council to meet.
14. Complaints about NHS CHC are dealt with by the Parliamentary and Health Service Ombudsman.
15. The Care and Support Statutory Guidance (CSSG) says “Deprivation of assets means where a person has intentionally deprived or decreased their overall assets in order to reduce the amount they are charged towards their care. This means that they must have known that they needed care and support and have reduced their assets in order to reduce the contribution they are asked to make towards the cost of that care and support.”
16. The guidance says “A local authority should therefore consider the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred:
17. (a) whether avoiding the care and support charge was a significant motivation in the timing of the disposal of the asset; at the point the capital was disposed of could the person have a reasonable expectation of the need for care and support?
18. (b) did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?”
19. If a council decides a person has deprived themselves of assets to avoid paying care fees, it may treat those assets as if the person still owns them (notional capital) in its financial assessment.

What happened

20. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
21. Mrs Y had complex needs. In September 2018, Mr and Mrs Y sold their home and gifted money to their children.
22. Mrs Y spent time in hospital, and in March 2019 she moved from hospital to a nursing home.
23. The NHS funded the placement through Continuing Health Care (CHC). In October 2021, the NHS reviewed the package of care and removed the CHC funding.
24. The Council completed an assessment and support plan and sent them to Mr and Mrs Y in November 2021.
25. The Council contacted Mr Y in February 2022 to complete the financial assessment.
26. A family friend, B, contacted the Council on behalf of Mr Y in March 2022 to discuss the financial assessment. The Council completed the assessment and sent it to Mr Y.
27. In May 2022, the Council identified Mr and Mrs Y sold a property in 2018 and gifted over £70,000 to their three children. The Council assessed the money from the house sale was split between Mr and Mrs Y. It decided the amount gifted to family, was notional capital. The Council told B, and the family Mrs Y needed to pay for her care.
28. Mrs Y’s daughter, C, told the Council the NHS was fast tracking an assessment for CHC funding in June 2022. The NHS completed an assessment and agreed to fully fund Mrs Y care. The CHC’s funding paid for Mrs Y’s care for approximately three weeks until she died.
29. In July 2022, the Council assessed Mrs Y owed over £16,000 for her care. The Council told C it assessed the notional capital and other funds. C was unhappy with the response and complained to the Council. She complained about the communication from the Council regarding the assessed charge and concerns about the CHC funding.
30. In August 2022, the Council decided the issues C complained about mainly related to the CHC funding. The Council advised C it would ask the NHS integrated care board (ICB) to lead on the complaint investigation and the Council would contribute where it could.
31. The ICB issued its complaint response in November 2022. The response confirmed the meeting to remove the CHC funding in October 2021 was a multi-disciplinary meeting with other professionals and followed guidelines. The response confirmed staff involved with Mrs Y’s care identified her needs increased and fast tracked a review in June 2022, in line with guidelines. The response did not uphold the complaint.
32. C contacted the Council in January 2023. She stated Mrs Y did not have the funds in her estate to pay the money the Council assessed she owed. The Council requested bank statements as evidence.
33. The Council continued to communicate with C about Mrs Y’s funds and in April 2023, the Council confirmed the bank statements detailed the amount in the bank account in June 2022. The Council assessed the expenses would reduce the owed amount to approximately £7,000. C provided more expenses and the Council reduced the amount owed to approximately £6,000.
34. The Council contacted C in October 2023 to chase payment. C said the Council had not responded to her and wanted to complain. She complained about the Council’s communication, the debt and repeated the family did not have the funds to pay.
35. The Council responded to C’s complaint in November 2023. The Council accepted the tone of the communications and a lack of an apology, fell short of what it expected. The Council apologised. It confirmed the approximately £6,000 remained owing to the Council.
36. Mr X was not satisfied with the Council’s response and has asked the Ombudsman to investigate, on behalf of Mr Y and C. Mr X would like the Council to not pursue the debt.
37. In response to my enquiries the Council accepted the delays completing the initial financial assessment.

My findings

38. The Ombudsman’s role is to review how councils have made decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant information, or failed to properly explain a decision it has made. We call this ‘fault’, and where we find it, we can consider the results of the fault and ask the council to address these.
39. We do not provide a right of appeal against council decisions, and we cannot make operational or policy decisions on councils’ behalf. If we do not find fault in how a council has made a decision, then we cannot criticise it, no matter how strongly a complainant feels it is the wrong decision. We do not uphold complaints because someone disagrees with what a council has done.
40. The Council has shown it assessed Mrs Y’s finances and made the family aware the costs of her care was £16,000. The Council determined the money Mr and Mrs Y gifted to their children was notional capital and Mrs Y would need to pay for her care when she did not receive CHC funding. The Council followed the Care Act sections I reference in paragraph 9 and the charging regulations I reference in paragraph 15. Based on the guidance, there is no reason why the Council was not entitled to decide Mrs Y had deprived herself of assets. The Council was not at fault.
41. However, after this the Council only considered what Mrs Y had in her account with Mr Y when assessing her finances. The Council assessed the family needed to pay approximately £6,000 when only considering the bank account. This did not follow the guidance the Council followed when previously assessing Mrs Y’s care contributions. This confused the family, and they did not understand the Council’s reasoning. The Council was at fault. This caused uncertainty for the family, but the Council has remedied this injustice as it has written off most of the money owed.
42. The Council has accepted the delay and the tone of some correspondence was fault. It has apologised for this fault. This is sufficient to remedy the injustice to the family.

Back to top

Final decision

43. I have completed my investigation. I have found fault by the Council, but it has already remedied any injustice caused by this fault.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman