Summary: Mr Y complained on behalf of his mother, Mrs X. He complained about how the Council dealt with Mrs X’s non-residential care charges following her discharge from the hospital. There were some faults by the Council which caused injustice to Mrs X and Mr Y. The Council will take action to remedy the injustice caused.

The complaint

1. Mr Y complained about how the Council dealt with his mother’s (Mrs X) non‑residential care charges. In particular Mr Y said the Council:

• did not inform Mrs X she would be charged for her care after she was discharged from hospital in January 2023
• did not inform Mrs X how much the care with the Care Provider would cost
• issued Mrs X with an invoice of £11,709 approximately six months after she started receiving care.

2. Mr Y said the matter caused significant distress to him, his sister and Mrs X.

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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. 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

7. I have investigated matters from January 2023 to March 2024. This covers the period from when Mrs X was admitted to the hospital to when the Council issued its final response to Mr Y’s complaint.
8. I have exercised discretion to investigate matters from January 2023. This is because Mr Y became aware of the issues complained of in August 2023 when the Council issued Mrs X’s first invoice.

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How I considered this complaint

9. I considered the information Mr Y and the Council provided about this complaint.
10. I sent Mr 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. The Care Act 2014, the Care and Support Statutory Guidance 2014 and the Care Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support, and its powers to charge.
12. Councils should develop and maintain a policy setting out how they will charge people for the cost in settings other than care homes. Councils must carry out a financial assessment to make a decision about the charges. This will assess the person’s capital and income.
13. The upper capital limit is currently set at £23,250 and the lower at £14,250. A person with assets above the upper capital limit are required to pay for their own care. Even if the capital is below the threshold of £23,250, people may have to pay a contribution from their income towards their care.
14. The Guidance says the people should be able to spend the money they have saved as they wish. However, it is also important people pay their fair contribution towards their care and support costs. Local Authorities should ensure people are not rewarded for trying to avoid paying their assessed contribution. Councils must therefore assess a person to determine whether they have intentionally deprived themselves of assets to avoid paying care fees. A person can deprive themselves of capital in many ways, for example by making lump sum payment to a person(s) as a gift.
15. Local authorities should not assume someone has intentionally deprived themselves of assets to reduce their contribution to care fees. The Guidance says there may be other valid reasons. In deciding whether the purpose of the deprivation was to avoid care fees, local authorities should consider:

• 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?
• did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?

16. If a local authority 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.
17. 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.

Background

18. Mrs X was diagnosed with Parkinsons disease in 2017.
19. In 2020, Mrs X moved in with her adult daughter after her husband died. Mrs X continued to live at her daughter’s home. Mrs X’s daughter became her main carer.
20. In 2021, Mrs X sold her property. Mrs X gifted some of the money from the sale of her property to her children and grandchildren. Mrs X kept about £14,000 for herself which was the remaining money from the property sale.
21. In December 2022, the Council said Mrs X was admitted to the hospital and she was supported by its Reablement Service when she was discharged. The Council said Mrs X was later discharged from the service when she was assessed as self‑caring, and she no longer required support.
22. Mrs X’s daughter became her main carer.

Key events

23. In January 2023, Mrs X was admitted to the hospital for a few weeks after she collapsed at home.
24. Mr Y said the Council instructed him to arrange a care package for Mrs X before she could be discharged from the hospital and allowed back at her daughter’s home.
25. The Council said Mrs X daughter contacted the Council to request a care needs assessment for Mrs X.
26. At the end of January 2023, the Council completed a care needs assessment for Mrs X while she was still admitted at the hospital. Mrs X’s daughter was present during the assessment. The Council found Mrs X had eligible care and support needs and it arranged a long-term care package to support her hospital discharge. The Council said it discussed financial assessment (FA) regarding Mrs X’s care charges with her daughter because she managed Mrs X’s finances. The Council said her daughter confirmed Mrs X would be willing to be financially assessed.
27. Mrs X was discharged from the hospital and her long-term care package started on 30 January 2023. Mr Y said the care provider (CP) told him that Mrs X’s care costs would be paid by the Council.
28. In February 2023, the Council sent Mrs X an FA form. Her daughter completed the FA form, she stated Mrs X sold her property in 2021 and gifted the money from the sale to her children and grandchildren. Mrs X’s daughter returned the completed form to the Council. Mr Y said the Council did not provide the family with Mrs X’s FA outcome.
29. In March 2023, the Council reviewed Mrs X’s support plan. Mrs X, her daughter and the CP agreed the care package was going well and confirmed Mrs X’s condition had improved. The Council decided Mrs X’s care package should be decreased because of her improvements.
30. The Council said after it received the initial FA form in February, it noticed further information was required about Mrs X’s property sale and the date she was diagnosed with Parkinsons. In May 2023, the Council sent Mrs X another FA form which was completed and returned.
31. In August 2023, the Council completed Mrs X’s FA and issued her with the outcome letter. The Council assessed Mrs X as a self-funder, and she was required to pay the full cost of her care. The Council decided to treat Mrs X as though she still owned the money from the property sale in 2021. The Council said this was because it considered Mrs X had intentionally deprived herself of her assets to avoid her care costs. The letter stated Mrs X’s assessed contribution of £571.20 per week would start from when she started receiving care. The Council issued Mrs X with an invoice of £11,709.60 which covered the period from 30 January 2023 to 16 July 2023.
32. Mr Y immediately raised his concerns and subsequently made a formal complaint to the Council. Mr Y:

• complained about how the CP had charged full amount for some days it did not provide Mrs X with the call service.
• said the CP had told him the Council would fund Mrs X’s care package and he expressed his frustration with how the Council had handled Mrs X’s care charges so far. For instance, its delays with completing Mrs X’s FA and issuing its FA outcome letter.
• complained about the £11,709.60 invoice the Council sent to Mrs X and said the family was not informed about any care charges, they never agreed to pay and did not sign any contract with the Council or CP prior to the start of Mrs X’s care package.
• disputed Mrs X deprived herself of her assets and said she was not liable for her care charges which Mrs X could not afford to pay. Mr Y provided the Council with additional information/evidence about Mrs X’s property sale.

33. The Council replied to Mr Y. The Council acknowledged there was a significant delay with updating Mrs X’s support plan on its system when her care package was reduced following her plan review which resulted in an overcharge. The Council apologised and said it had amended the error and it would add a credit of £4,222.80 to Mrs X’s next invoice to reflect the correct charges. The Council also said it would inform the relevant team of the importance of updating support plans in a timely manner.
34. The Council also explained it decided that Mrs X deprived herself of assets because she gifted the money from her property sale which she could have had available to pay for her care. The Council said this was because Mrs X was diagnosed with Parkinsons disease in 2017 before she sold her property and that its record showed Mrs X’s late husband had contacted the Council in 2017 and requested a care needs assessment for her because he was struggling to cope with Mrs X’s deteriorating condition. The Council said it found it was reasonable for Mrs X to expect care and support would be required in the future.
35. The Council said it informed Mrs X’s daughter about FA in January 2023 when it completed Mrs X’s care act assessment before she was discharged from the hospital. The Council apologised if the CP had advised the family otherwise which was out of its remit. The Council said it had addressed the matter directly with the CP.
36. In November 2023, Mr Y asked the Council to escalate his complaint. He said the Council did not address its delays with completing Mrs X’s FA and delays with invoicing. Mr X disputed Mrs X should be liable to pay towards her care costs from when she started receiving care until August 2023 when they received the large bill. He said this was because the Council did not inform the family about the level of Mrs X’s care charges during this period.
37. In March 2024, the Council issued its stage 2 response and it apologised for its delays. The Council acknowledged it would have been preferable for Mrs X’s FA to have been completed prior to the start of her care so the family could have the full implication of the care charges. But the Council said that would have caused severe delay in starting Mrs X’s care package which was of paramount importance to meet her identified care needs at the time. It reiterated FA was discussed with Mrs X’s daughter before she was discharged from the hospital so she was aware Mrs X may be asked to pay towards her care costs.
38. The Council maintained Mrs X deprived herself of her assets, but it apologised for its delays with issuing Mrs X’s invoice and its poor communication with the family. The Council confirmed Mrs X’s care charges remained outstanding. It said it would ensure the FA systems were simplified and that its invoicing process was done quicker so service users are notified of FA outcomes in a timely manner.
39. Mr Y remained dissatisfied with the Council’s responses, and he made a complaint to the Ombudsman.

Analysis

40. 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, the Council first sent the FA form to Mrs X in February 2023, then in May 2023 but it did not complete and issue the FA outcome until August 2023. It took the Council a total of approximately 6 months to complete Mrs X’s FA. This was a significant delay, and it was fault. It caused uncertainty to Mrs X.
41. Although the Council did not complete an FA for Mrs X before her care started, it discussed the FA with Mrs X’s daughter during the care act assessment in January 2023. This was before Mrs X started receiving her care package. I find Mrs X’s daughter was made aware Mrs X might have to contribute towards her care charges. This was not fault. We would also expect service users, their family and/or their representatives to be proactive when they are aware there might be a charge. They should not generally assume the absence of a completed FA implies they will not have to pay anything towards care.
42. The Council did not issue Mrs X with an invoice of £11,709.60 for her care charges until August 2023. This was approximately 6 months after Mrs X started receiving her care package. This was a significant delay, and it was fault. We would expect an invoice to be issued within about a month of when Mrs X started receiving non-residential care. This caused undue distress to Mrs X and her family.
43. I find further fault by the Council for its failure to update its system with Mrs X’s reviewed support plan in March 2023. This was fault and resulted in an initial overcharge after Mrs X’s care package was reduced. The Council’s failing also caused Mr Y avoidable time and trouble chasing the Council to rectify the error. However, the Council apologised and rectified the error after Mr Y raised the issue with it.
44. The Guidance requires councils to consider whether there has been a deprivation of assets when it carries out a financial assessment. The Council discharged its responsibility when it completed Mrs X’s FA. It considered whether Mrs X had a reasonable expectation of the need for care and support and of the need to contribute towards the costs of her care at the time she made gifts. The Council also considered the timing and pattern of how Mrs X disposed of the proceeds from the sale of the property. The Council made these considerations in line with statutory guidance.
45. The Ombudsman is not an appeal body. It is not for me to say whether the gifts were deliberate deprivation, or what Mrs X’s intention was in giving them. My role is to decide whether the Council followed the Guidance and considered relevant information in how it reached its decision. In this case, evidence shows it did. Therefore, I do not find fault by the Council in the way it considered and reached its decisions that Mrs X had deprived herself of assets to avoid care costs and how it applied the maximum charge to her care costs.
46. I appreciate Mrs X and her family were distressed by the receipt of a large bill some months after she started receiving her care package. But I have no grounds to direct the Council to write off Mrs X’s outstanding care charges. This is because 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 X’s daughter was aware there might be a charge for the service provided to Mrs X.
47. The Council was at fault for its delays in issuing its stage 2 response to Mr Y’s complaint. While I note the Council sent holding letter to Mr Y, there was approximately a 2-month delay in issuing its stage 2 response. This was fault and not in line with the Council’s complaint policy. It caused Mr Y further distress.

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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:

• apologise in writing to Mrs X and make her a symbolic payment of £150 to acknowledge the avoidable distress and uncertainty caused to her by the Council’s failings as identified above. The apology should be in accordance with our guidance, Making an effective apology
• apologise in writing to Mr Y and make him a symbolic payment of £250 to acknowledge the distress and avoidable time and trouble caused to him by the Council’s failings as identified above. The apology should be in accordance with our guidance, Making an effective apology
• offer Mrs X an affordable repayment plan option for her to pay her outstanding care costs of £11,709.60 by instalments
• review the Council’s systems and practice to ensure it completes financial assessments in a timely manner
• remind relevant staff of the importance of adhering to the Council’s complaint policy and its timescales for issuing its responses to service users’ complaints
• provide the Ombudsman with evidence of the service improvements the Council mentioned in its responses to Mr Y’s complaint. That the Council would:
1. remind relevant staff/team of the importance of updating service users’ support plans on its system in a timely manner.
2. ensure the Council’s financial assessment systems are simplified and its process of invoicing care charges are done in a timely manner, so service users are notified of the need to pay towards their care based on their financial assets shortly after their assessments of care and support need.

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