Summary: Mrs Y complained on behalf of her mother, Mrs X. Mrs Y complained about how the Council dealt with Mrs X’s residential care charges and the Council’s poor communication with Mrs Y about the matter. There were some faults by the Council which caused injustice to Mrs Y. The Council will take action to remedy the injustice caused.

The complaint

1. Mrs Y complained about how the Council dealt with her mother’s (Mrs X’s) residential care charges. In particular the Council’s:

• poor and confusing communication with Mrs Y in relation to a 12-week property disregard for Mrs X
• delays with and issuing unclear invoices for Mrs X’s care costs.

2. Mrs Y said she felt she had been unfairly treated and that the matter caused her distress, confusion, frustration and the time and trouble chasing the Council for updates and clarification.

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The Ombudsman’s role and powers

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. 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

8. I have exercised discretion to investigate matters from May 2021 to January 2024. This period covers when Mrs X first moved into a care home until when the Council issued its final response to Mrs Y’s complaint. There is good reason to investigate Mrs Y’s complaint because of the potential fault in the financial assessment process.

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How I considered this complaint

9. I considered the information Mrs Y and the Council provided about this complaint.
10. I sent Mrs Y and the Council a copy of my draft decision and considered the comments received before reaching a final decision.

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What I found

Law and guidance

11. Councils must carry out a financial assessment to make a decision about care charges. This will assess the person’s capital and income. People who have assets over £23,250 have to pay the full cost of their care. If they own property, that is taken into account. Charging rules say a council must disregard the value of a person’s property in their financial assessment for the first 12 weeks of a permanent care home placement (‘the 12‑week property disregard’). The start date for this disregard is when the person would have become eligible for financial support from the council. (Paragraph 45 of Annex B of the Care and Support Statutory Guidance)
12. Once a council completes the financial assessment, it must give a written record of the assessment to the person. It should explain how the assessment has been carried out, what the charge will be, how often it will be made and if there is any fluctuation in charges, the reason. Councils should ensure that this is provided in a manner that the person can easily understand, in line with its duties on providing information and advice.
13. Power of Attorney – is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or finances and property, for when they become unable to do so for themselves. The ‘attorney’ is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.

Key events

2021

14. Mrs X has dementia and due to an increase in her care needs, Mrs X’s family decided there was a need to move her to a residential care home. Mrs Y manages Mrs X’s finances as her power of attorney.
15. Mrs X jointly owned her property, and she was expected to pay a contribution towards her care based on her income and capital. Mrs Y said Mrs X was a self‑funder, so she needed to sell her property to be able to fund her care fees.
16. In early May 2021, the Council asked Mrs Y to provide some information about Mrs X’s finances. This was so the Council could complete a financial assessment (FA) for Mrs X and to determine how much she would be charged for the first 12 weeks of her placement. This was because a council must disregard the value of a person’s property in their FA for the first 12 weeks of a permanent care home placement.
17. The Council’s letter also stated that because Mrs X jointly owned a property, she would be charged the full cost amount for her care fees after the first 12 weeks. The only assistance we are able to offer after this is a deferred payment. The Council advised Mrs Y to seek independent financial advice.
18. Mrs Y submitted the completed FA form with supporting evidence to the Council.
19. On 27 May, Mrs X moved into a residential care home which was commissioned by the Council.
20. In August, Mrs Y said she spoke with Mrs X’s social worker about her concerns at the rate Mrs X’s savings was reducing due to her care charges. Mrs Y said the social worker told her the Council would grant the property disregard request. And that the Council would pay a maximum of £650 per week for Mrs X’s care cost to cover the first 12 weeks of her placement.
21. In October, Mrs Y said she chased the Council, and that the social worker also sent an email to the relevant team for updates about the 12-week property disregard request for Mrs X. She explained Mrs X’s savings were running out and the matter was causing her stress. Mrs Y asked the Council to treat her request urgently.
22. In late October, the Council completed Mrs X’s FA. It apologised for the delay in completing the FA and confirmed it had just been notified that a 12-week property disregard had been agreed with Mrs X’s care home. The Council said the disregard covered from 12 May to 4 August. The Council attached two FAs to show Mrs X’s weekly contribution towards her care. The letter stated the Council will send an invoice for the 12-week disregard period which would be based on the enclosed FAs. Mrs Y said she did not receive the Council’s letter.
23. In November, the Council credited Mrs X’s care home with £7,800 for her care costs to cover the 12-week property disregard period.
24. In late November, the Council issued Mrs Y with a £3,136.52 invoice for Mrs X’s care cost. This covered the period from 12 May to 3 August (the 12-week property disregard period).
25. Mrs Y wrote to the Council. She said Mrs X was a self-funder and was in receipt of the 12-week disregard pending the sale of her property, so Mrs Y asked what the £3,136.52 invoice was for. Also, Mrs Y pointed out the 12 May 2021 start date at the care home was an error.
26. The Council replied to Mrs Y and confirmed the invoice was for Mrs X’s residential care charges. It apologised for the confusion and its error with Mrs X’s start date at the care home and confirmed the date had been correctly changed to 27 May. The Council said a credit would be added to Mrs X’s next invoice to reflect the correct start date. The Council also attached the two FAs it completed to show Mrs X’s weekly care cost contribution as £321,11 (27 May to 23 July) and £226.51 (from 24 July).
27. In December, Mrs X’s house sale was completed.

2022

28. In February, the Council sent Mrs Y a £225.07 credit invoice to reflect Mrs X’s correct start date at the care home.
29. Mrs Y informed the Council she had not received Mrs X’s adjusted invoice but instead the Council had sent her two reminders to pay the original invoice which she said was wrong. Mrs Y said Mrs X had been paying £350 top up fees to the care home which appeared the Council had not considered in the FAs it completed for her. Mrs Y said Mrs X should therefore have had zero contribution towards her care costs.
30. The Council replied and said it could not have considered the £350 per week fees Mrs X paid to the care home in the FAs. The Council said this was because the charges it had agreed with the care home was £650 per week and not £1,000 per week. It said the additional £350 was for Mrs X to pay towards her care costs which she had been paying.
31. The Council advised Mrs Y that it would place Mrs X’s current invoice on hold until it received new information from a recent FA it had completed for Mrs X.
32. In March, the Council issued a £152.71 invoice for Mrs X’s care which Mrs Y paid in full.

2023 and 2024

33. In September 2023, Mrs Y said she placed Mrs X’s remaining money in a one‑year fixed rate bond.
34. In October 2023, the Council issued an invoice of £2,911.45 for Mrs X’s care charges.
35. Mrs Y made a formal complaint to the Council. Mrs Y said she believed she had paid off all Mrs X’s outstanding care fees when she received Mrs X’s revised £152.71 invoice in March 2022. Mrs Y questioned why the Council had sent her another invoice of £2,911.45, eighteen months after it issued the last invoice. Mrs Y also said she was not informed Mrs X would pay any fees during the 12‑week disregard period.
36. In its responses to Mrs Y’s complaint, the Council:
1. said Mrs Y was aware Mrs X would be liable to make contributions towards her care costs when she submitted the FA form and supporting evidence to claim financial assistance from the Council.
2. maintained Mrs X’s total care charges were correctly invoiced. The Council confirmed after it completed an FA for Mrs X, her total care charges from 27 May to 17 August 2021 was £3,064.16. It said Mrs Y then made a payment of £152.71 which took Mrs X’s outstanding care charges to £2,911.45. The Council provided a breakdown of Mrs X’s outstanding care charges.
3. apologised for its confusing invoices and its delay in issuing Mrs Y with the outstanding invoice for Mrs X’s care charges.
4. explained the reasons it issued Mrs Y with different invoices.
5. apologised for sending Mrs Y reminders to pay Mrs X’s initial £3,136.52 invoice which she disputed and when the case was meant to have been put on hold. The Council said this was due to its staff error.
6. acknowledged there was a £202.71 increase in Mrs X’s care charges for the period 9 June 2021 to 24 June 2021. It said the increase was not clearly shown on Mrs X’s invoices. Therefore, the Council said it would waive the £202.71 which meant Mrs X’s outstanding care costs came to a total of £2,708.74.
37. Mrs Y remained dissatisfied with the Council’s response, and she made a complaint to the Ombudsman.

Analysis

38. The law and guidance do not specify a timescale for completing an FA, however, councils are expected to complete FAs in a timely manner. In this case, Mrs Y submitted an FA form to the Council in May 2021, but the Council did not complete an FA for Mrs X until October 2021. This meant it took the Council approximately 5 months to complete Mrs X’s FA and to provide Mrs Y with a written record of Mrs X’s FA outcome and any contribution she was assessed to pay towards her care costs. This was fault and it caused Mrs Y uncertainty.
39. Similarly, it took the Council 5 months to consider and provide its decision about Mrs X’s 12-week property disregard request (May to October 2021). This was fault. It caused Mrs Y uncertainty not knowing how much the Council will contribute towards Mrs X’s care costs. It also caused Mrs Y distress and the time and trouble chasing the Council for updates on the matter.
40. Mrs Y said she did not receive the Council’s letter in late October 2021 about its decisions on Mrs X’s FA and the 12-week property disregard request. Where there is a conflict of evidence, we base our findings on what was more likely to have happened. In this case, on balance of probabilities, it was likely the Council issued the letter in October 2021. I cannot say why Mrs Y did not receive it.
41. Mrs Y stated Mrs X’s social worker told her the Council would pay a maximum of £650 per week for Mrs X’s care cost to cover the first 12 weeks of her placement. Based on the information provided by the social worker, Mrs Y said she believed Mrs X did not need to make any contribution towards her care costs during the 12-week property disregard period. While I note Mrs Y’s points, we would expect service users and/or their representatives to be proactive when they are aware there might be a charge. They should not generally assume they will not have to pay anything towards care, this is inclusive of the 12-week property disregard period.
42. I find Mrs Y would have been alerted to the fact that Mrs X would have had to contribute towards her care costs in the first 12 weeks of her placement. This is because the FA letter the Council sent to Mrs Y in May 2021 stated the Council needed some information about Mrs X’s finances to determine how much she would be charged for the first 12 weeks of her placement. Also, the Council’s letter stated that because Mrs X jointly owned a property, she would be charged the full cost amount for her care fees after the first 12 weeks. Therefore, I find Mrs Y was aware that Mrs X might have had to contribute towards her care costs during the 12-week property disregard period before Mrs X moved into the care home. This mitigates the injustice caused to Mrs Y as stated in paragraphs 38 and 39 above.
43. The Council issued Mrs X’s first invoice in November 2021. This was approximately 6 months after Mrs X moved into the residential care home and it was fault. The usual expectation is for invoicing to take place every four weeks. Also, I find the Council calculated Mrs X’s initial invoice of £3,136.52 using an incorrect start date. Although this was fault, the Council took steps to rectify the error after Mrs Y informed it of the incorrect date. The Council subsequently issued a £225.07 credit invoice to reflect Mrs X’s correct start date at the care home. Therefore, I find there was no significant injustice caused.
44. Furthermore, the Council issued another invoice of £2,911.45 for Mrs X’s care costs in October 2023. This was approximately 19 months after the previous invoice it sent to Mrs Y in March 2022. This was a significant delay, and it was fault. It caused undue distress and confusion to Mrs Y.
45. The Council also acknowledged it failed to clearly show on Mrs X’s invoice her increased £202.71 care charges for the period 9 June 2021 to 24 June 2021. This was fault but I consider there was no injustice caused. This is because the Council said it would deduct the £202.71 from Mrs X’s previous outstanding care fees of £2,911.45. This means Mrs X’s outstanding care costs is a total of £2,708.74.
46. I appreciate Mrs Y was distressed and shocked by the receipt of a large bill in October 2023 after approximately 19 months of receiving a previous invoice which she believed was Mrs X’s final invoice. But I have no ground to direct the Council to write off the £2,708.74 outstanding care charges or any part of it as it is within the Council’s right to charge for the care services provided to service users. Mrs X got the benefit of the care service and as stated earlier, Mrs Y was aware there might be a charge for the service provided to Mrs X.
47. I also note the Council has apologised for its confusing invoices, the reminders it sent to Mrs Y in error to pay the original incorrect invoice and for its delay in issuing Mrs Y with the outstanding invoice for Mrs X’s care charges. However, I do not consider the apology is proportionate to remedy the injustice caused to Mrs Y in line with our guidance on remedies. This has been addressed under the ‘agreed action’ section below.

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Agreed action

48. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• make Mrs Y a symbolic payment of £250 to acknowledge the injustice caused to her by the Council’s failings as identified above
• put on hold its actions for pursuing Mrs X’s outstanding care costs of £2,708.74 until after her one-year fixed rate bond matures in September 2024
• review the Council’s systems and practice to ensure it completes financial assessments and consider the 12-week property disregard requests (where applicable) in a timely manner
• by training or other means remind relevant staff they must issue service users and/or their representatives with written record of the financial assessment outcome at an early stage which clearly sets out their assessed contributions towards their care and details of how the payments will be made
• remind relevant staff of the importance and need to issue care cost invoices to service users and/or representatives in a timely manner and as soon as practicable after they start receiving care.

49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. I find evidence of some faults by the Council leading to injustice. The Council will take action to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman