Summary: Mrs Z complained the Council has wrongly withdrawn Mrs Y’s care package, without properly considering how her needs will be met until her land can be sold. We found the Council’s decision to immediately end Mrs Y’s care package and seek to recover all costs incurred since April 2023 is fault. This has caused an injustice as Mrs Y’s care needs are not currently being met and Mr Y and Mrs Z are suffering carer stress. The Council has agreed to apologise and make payments to Mr and Mrs Y and Mrs Z. It will also reinstate Mrs Y’s care package, review her situation and provide training to relevant staff.

The complaint

1. Mrs Z complained the Council has wrongly withdrawn Mrs Y’s care package, without properly considering how her needs will be met until her land can be sold. Mrs Y does not have the funds available to pay for her care and is not able to sell or arrange for the sale of any land herself. As a result her care needs are not currently being met and her husband and daughter (Mr Y and Mrs Z) are suffering carer stress.
2. Mrs X is helping Mrs Y and Mrs Z in pursuing this complaint.

Back to top

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 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)
5. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

Back to top

How I considered this complaint

6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. Mrs X and Mrs Z and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

Charging for care

8. Councils have 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. They have the discretion to choose whether or not to charge for non-residential care following a person's needs assessment.
9. Councils should develop and maintain a policy on how they want to apply this discretion locally. In designing this policy, local authorities should consider the objectives of care and support charging and how it can be clear and transparent so people know what they will be charged.
10. 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, sections 14 and 17). Financial assessments should take place around the same time as a needs assessment.
11. Where a person lacks capacity they may still be assessed as being able to contribute towards the cost of their care. However, the council must put in place policies regarding how they communicate, how they carry out financial assessments and how they collect any debt that take into account the capacity of the person as well as any illness or condition.
12. It must carry out a financial assessment to decide what a person can afford to pay. People receiving care and support other than in a care home need to keep a certain level of income to cover their living costs. Councils' financial assessments can take a person's income and capital into consideration, but not the value of their home.
13. If a person has more than the upper capital limit of £23,250 the council can ask them to pay the full cost of their care. The statutory guidance provides a
14. non-exhaustive list of examples of capital which includes buildings and land. A council will need to work out what value a capital asset has in order to take account of it in the financial assessment. The valuation must be the current market value minus 10% of the value if there will be fees involved in selling the asset.
15. Where a person has joint ownership of capital, unless there is evidence the person owns an unequal share, the total value should be divided between the joint owners and the person treated as owning an equal share.
16. The Council's charging policy is clear that it charges for all care and support services unless they are exempt, for example where they receive a short term re-enablement service. Individuals with capital over £23,250 are required to fund the full cost of their care where the care and support is not provided in a care home.
17. The Council's charging policy provides that in rare individual circumstances, assessing officers can seek permission from its resource panel to agree exemptions to the policy.

What happened here

18. Mr and Mrs Y are elderly and both have a number of health and mobility conditions. They live together in their home.
19. In March 2023 Mrs Y was admitted to hospital following a fall. She returned home in early April 2023 with a package of care. This was initially provided by the NHS. The Council then provided direct payments for 26.25 hours a week from 26 April 2023. Mrs Y’s daughter, Mrs Z, runs her own care company and provided Mrs Y’s care. She visited Mrs Y four times a day, and helped her to wash and dress, use the toilet and manage incontinence products. Mrs Z also helped Mrs Y with medication and supported her to eat and drink.
20. The Council did not complete a financial assessment at this stage. In August 2023 an officer asked Mrs Z to complete the financial assessment form.
21. Mrs Z returned the completed forms in September 2023. She confirmed the only land Mrs Y owned was attached to the house. Mrs Z also confirmed this land had never been used for commercial purposes or financial gain while in Mr and Mrs Y’s ownership.
22. The Council then asked Mrs Z for copies of title deeds for Mr and Mrs Y’s property to confirm the land on the farm was attached to the home and under one title. Mrs Z provided this information and confirmed the extent of the land.
23. According to the Council’s records, an officer then contacted a local property and land auctioneer to confirm the value of the land. The officer’s further research identified average prices for land in the area in 2021. Based on the lower price per acre, they calculated Mrs Y’s beneficial interest in the land after selling costs would be almost £100,000.
24. The Council then wrote to Mrs Y on 31 October 2023 advising the land was classed as a capital asset. As the value of this land was above the threshold of £23,250 Mrs Y would be liable for the full cost of her care from 26 April 2023. The Council advised it would instruct the direct payments team to stop any future payments and to issue an invoice for all the monies paid since 26 April 2023.
25. It suggested Mrs Y seek independent financial advice on the best way to use her capital assets to pay for her long term care.
26. Mrs Z contacted the Council to discuss the financial assessment then made a formal complaint on 14 November 2023. She complained the Council had failed to carry out a financial assessment promptly causing financial hardship and potential damage to health. And had now refused Mrs Y the care and support she needed.
27. Mrs Z also complained they had been misled and misinformed by council officers. Mrs Z said they were advised during the care assessment in April 2023 that Mrs Y qualified for ongoing care and that the costs would be met by the Council as her savings were under the £23,250 limit. She says at no point were they told capital assets included the land attached to the house.
28. In appealing the Council’s decision Mrs Z disputed the land should form part of the financial assessment as it is part and parcel of the residential family home, which is jointly owned by Mr and Mrs Y. She asked for guidelines and allowances and asserted the situation was no different to someone with a large garden being instructed to sell off part of their garden to fund their care.
29. Mrs Z also asserted the Council’s decision had placed Mrs Y in danger as she still had significant care needs and lacked the capacity to engage in the sale of any land. She asked the Council to urgently reinstate the funding for Mrs Y’s care package and withdraw the request for monies to be repaid.
30. The Council responded on 1 December 2023. It acknowledged there was a delay in completing the financial assessment for Mrs Y. Although the Council aimed to contact people within three weeks of the care package starting, it said it had been unable to achieve this for some time due to a large backlog of referrals.
31. To reduce the backlog the Council said it had recruited three new finance and benefits officers over the summer who were now fully trained and had recently recruited a further three officers who would start their training in the new year.
32. The Council said the financial assessment was correct. It said the property Mrs Y lives in is fully disregarded when assessing her contribution towards the cost of her care, but the land is not. The Council noted the boundary map Mrs Z had provided showed the land was not part of their back garden. It was made up of a number of fields which could be sold off separately without affecting Mrs Y’s ability to continue living in the property.
33. On this basis the Council advised it would not reinstate the funding. It again recommended Mrs Y seek financial advice on how to realise money from the land to pay for her care. The Council suggested if Mrs Y was unable to deal with her own finances she look to appoint a Lasting Power of Attorney. Or, if she lacked the mental capacity to consent to this, it advised Mrs Z she would need to apply to the Court of Protection for Deputyship.
34. The Council also advised that while applying for Deputyship, Mrs Z would be able to apply for Council funding towards Mrs Y’s care on a temporary basis with an agreement signed to repay all monies owed once the Deputyship was granted.
35. The Council acknowledged Mrs Y and Mrs Z were not given the correct information about the financial assessment process or what the criteria to be eligible for funding was. They noted the officer who arranged the care package only asked whether Mrs Y had savings over £23,250 and did not tell her that land was treated as capital. The officer had also not provided copies of the information sheets which confirm land can be treated as capital and that where a person is found to be over the capital threshold the Council can backdate care charges to the start of the package.
36. It confirmed it had reminded the adult social care teams of the importance of giving out the information sheets as early as possible and was identifying staff who required further training on the financial assessment process.
37. The Council confirmed it was seeking advice on whether Mrs Y should be charged for her care from 26 April 2023 and hoped to have a decision within two weeks.
38. Mrs Z chased the Council twice in December 2023 for confirmation of whether Mrs Y would have to repay the care charges. She also told the Council Mrs Y’s condition had deteriorated and only had months to live.
39. Mrs Y remained unhappy and sought advice from a charity Mrs X works with. Mrs X wrote to the Council in January 2024 expressing concern at the Council’s decision to remove Mrs Y’s care package. She noted that even if the Council did not consider it had a duty to meet Mrs Y’s needs, it had discretion to do so. Mrs X asserted the Council should have taken into account the safeguarding risks Mrs Y faced if the care package was withdrawn. In particular the risk of harm where her care needs may not be fully met.
40. Mrs X also noted Mrs Y’s capital was not available to pay for her care, it was land that would require a complicated procedure to sell, which could not be managed by Mr and Mrs Y given their ages and medical conditions. She suggested the Council visit Mr and Mrs Y at home to see the conditions in which they were living.
41. The Council visited Mrs Y on 30 January 2024 to complete a reassessment of her care and support needs, mental capacity assessments and a risk assessment. The care assessment noted the removal of Mrs Y’s care package had had a significant physical and mental impact on Mrs Y and her family. Mr Y and Mrs Z had tried to provide the support necessary to keep Mrs Y safe and ensure her needs were met. But this was not sustainable, and without their support Mrs Y would be at risk. The assessment recommended a request be made for funding support from adult social care to ensure Mrs Y had the formal care she needs in place. This would also remove the risk of carer breakdown.
42. The risk assessment also identified several risks of harm to Mrs Y and recommended a care package to address these.
43. The mental capacity assessments determined Mrs Y lacked capacity to make decisions regarding her care but had capacity for decisions regarding her finances.
44. On 2 February 2024 the Council held a discussion. The participants agreed Mrs Y had care and support needs, but that the decision sits within the fairer charging assessment. They advised that Mrs Z should support Mrs Y with making arrangements for care and support identified during the assessment. The forum also recommended Mrs Z replace Mr and Mrs Y’s fridge and repair or replace their cooking facilities. And that advice be sought for Mrs Z to be able to support Mrs Y with her finances, either via Lasting Power of Attorney or Court appointed Deputy.
45. The Council wrote to Mrs Z on 15 February 2024 responding to elements of her complaint it had not previously addressed. It noted the recent assessment of Mrs Y’s care needs recommended care and support be put in place at home. The social worker also noted Mrs Y relied on Mrs Z to provide her support on her answers in the assessment. And Mrs Z had stated Mrs Y had dementia and needed support to dispose of any assets. The Council said it would like to carry out a mental capacity assessment to establish whether Mrs Y had capacity to manage her financial affairs.
46. The Council also confirmed it had decided the debt of £18,262.81 for care charges since 26 April 2023 would be written off. It was satisfied Mrs Y did not receive correct information about the financial assessment at the time.
47. Mrs Z remained unhappy with the Council’s decision.
48. On 22 February 2024 Mrs X raised a further complaint on Mrs Y’s behalf about the failure to provide care. She asserted the issue of selling the fields was separate to the Council’s duty of care under the Care Act. And that the Council must regard this as an urgent safeguarding situation.
49. The Council responded the same day and acknowledged Mrs Y had eligible Care Act needs. Her financial assessment was a separate process and had deemed her as self-funding so she must pay the full cost of her care. The Council confirmed it could arrange care packages for self-funders, and that Mrs Y and her family could ask for this. This would be a care package commissioned on Mrs Y’s behalf by the Council and charged to her at full cost. Or the family could source care themselves.
50. Mrs X also raised safeguarding concerns regarding Mr and Mrs Y on 22 February and 7 March 2024. She asserted that if the situation was not addressed urgently and the care reinstated immediately Mrs Y was in danger of death from infection or pneumonia. Mrs X told the Council their property was dilapidated and the roof was leaking. Their sole source of heat was a wood fire which goes out at night and leaves them in the cold. Mrs X said Mr and Mrs Y were living in one room with a hospital bed, and a commode, and that Mr Y slept in a chair. Mr and Mrs Y were both frail and at risk of falls.
51. Mrs X said the Council had failed in its duty of care to Mrs Y as a vulnerable adult who was being caused harm by its decision. She asked for an urgent review of the case.
52. The Council’s records show the safeguarding team did not consider it a matter for their team. They noted the concerns related to the package of care being withdrawn due to funding and that Mr Y was struggling to care for Mrs Y. The safeguarding team referred the matter to adult social care. They then wrote to Mrs X advising it would not progress the matter to safeguarding as Mrs Y did not meet the criteria as defined by section 42 of the Care Act 2014. That is:
• has needs for care and support (whether or not the local authority is meeting any of those needs); and
• is experiencing, or at risk of, abuse or neglect; and
• as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.
53. Mrs Z also contacted the Council on 20 March 2024 and questioned how the land could be sold. She said Mrs Y was unable to sell it, both because she had dementia, and also because Mr Y was joint owner and did not consent for the land to be sold. Mrs Y had been without care for six months and had been left in a terrible state.
54. The Council wrote to Mrs Z on 21 March 2024 and noted her concerns about selling the land but advised it was unable to comment and suggested she seek independent financial advice. It also noted it had offered support with the commissioning of care and support for Mrs Y but she would be expected to pay the full cost of any care implemented.
55. Mrs Z accepted the offer of commissioned support but reiterated Mrs Y was not able to pay for her care. She said the land would be hard to sell and would take time, which Mrs Y did not have.
56. In its response the Council repeated that Mrs Y had been assessed as
    self-funding her care and that she would be charged the full cost of any services.
57. As they have been unable to resolve the situation Mrs X asked us to investigate the matter.
58. In response to our draft decision the Council has emphasised it offered several times to commission a package of care for Mrs Y as a self-funder. It says it offered to arrange a package on a temporary basis and the charges could be repaid when the land was sold.
59. The Council says Mrs Z said it would be too difficult to sell the land and wanted the Council to disregard it. The Council has highlighted it is a large rural county where farm and land ownership is a common occurrence. It says that if it applied discretionary disregards to all land ownership this would have a significant impact on the Council and other rural councils.

Analysis

60. The Council accepts there was a delay in completing the financial assessment. And that it did not provide complete and accurate information at the outset about what would be included in the financial assessment and the impact on Mrs Y. This is fault. The Council has taken action to address these delays through the recruitment of additional staff. This is to be welcomed.
61. Having belatedly completed the financial assessment the Council has correctly identified that Mrs X has capital in the form of land. Her share of the land is valued at more than £23,250, which would mean Mrs Y is responsible for the cost of her care.
62. We would not however expect the Council’s consideration of Mrs Y’s circumstances to end here. Although the Council can charge for the cost of
    Mrs Y’s care, it has discretion not to. The Council has raised concerns about the implications of applying discretionary disregards to all land ownership in its area. We do not suggest the Council should routinely exercise discretion not to charge landowners for their care. However, we would expect the Council to consider Mrs Y’s specific circumstances and whether they can be distinguished from other cases.
63. There is no dispute that Mrs Y needs a package of care and support and she will be at risk without it. Nor is there any dispute that Mrs Y does not have the income or savings to pay for the care and support she needs.
64. Mrs Y’s age and medical conditions, combined with the fact she owns the land jointly with Mr Y, who does not want to sell the land, means the funds cannot be readily realised. Any attempts to sell the land would also be delayed by the need for Mrs Y to appoint a Lasting Power of Attorney or Deputy with the Court of Protection.
65. Even if Mrs Y was the sole owner of the land and was physically and mentally able to sell it, this would clearly take time. It could not be achieved over night or within a matter of days. Unless and until the land is sold, Mrs Y does not have the funds available to pay for the care she needs.
66. We consider the Council’s decision to immediately end Mrs Y’s care package and seek to recover all costs incurred since April 2023 is fault.
67. There is no evidence of any consideration of the impact this would have on Mrs Y’s wellbeing, or the risks immediately ending the care package posed. Nor is there any evidence the Council considered exercising discretion not to charge Mrs Y or alternatively to fund Mrs Y’s care pending the sale of the land.
68. The Council asserts it repeatedly offered to commission a package of care for Mrs Y which it would temporarily fund until she could sell the land and realise her assets. However the documentation provided does not support this. The Council did on several occasions confirm it could commission a package of care for Mrs Y as a self-funder, but it did not offer to temporarily fund this care until the land was sold.
69. The complaint response in December 2023 offered to temporarily fund a care package should it be necessary to apply to the Court of Protection for Deputyship. It said the charges would then have to be repaid once Deputyship had been granted. This offer of temporary funding was specific to an application for Deputyship. There is no evidence the Council offered to fund Mrs Y’s care while she obtained legal or financial advice, or pending an application for Lasting Power of Attorney, or the sale of the land.
70. It is of concern that even when the risk assessment and care assessment showed the removal of Mrs Y’s care package had had a significant impact on her physical and mental health and wellbeing, the Council did not agree to reinstate the package. The Council has not shown how its decision not to take safeguarding action was justified by the evidence. It knew the impact on Mrs Y of withdrawing the care package. It knew this meant she would probably be left without care and support it had assessed she needed. It therefore should have considered whether the absence of such support would cause a safeguarding concern. Its failure to do so was fault.
71. The Council has offered to commission services for Mrs Y, but only on the condition that she pays the full cost. The Council failed to properly consider Mrs Y’s circumstance when deciding to offer to commission services. It knew this was probably not a viable option for Mrs Y yet failed to have regard to this in its decision making. Mrs Y does not have readily available funds with which she can pay for her care, whether the service is commissioned by the Council or privately.
72. The fault identified has caused Mrs Y, Mr Y and Mrs Z a significant injustice. Mrs Y has been left without the care and support she needs for a substantial period of time. This has had a considerable impact on her health and wellbeing and has left her at risk of harm. Mr Y and Mrs Z have had to step in to meet some of Mrs Y’s care needs which has led to carer burn out and affected their own wellbeing.
73. This fault also meant Mrs Y unexpectedly received a substantial bill for backdated care charges. The Council has since withdrawn this bill. This is to be welcomed, but there was a period of almost four months before the Council confirmed it would not pursue these costs. This caused Mrs Z significant distress and uncertainty.

Back to top

Action

74. The Council has agreed to:
• apologise to Mr and Mrs Y and Mrs Z for the fault identified and the distress and difficulties this has caused. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance when making the apology we have recommended in our findings;
• reinstate Mrs Y’s care package with immediate effect to ensure her needs are met and the risk of harm mitigated;
• urgently review Mrs Y’s current situation, her capacity to make relevant decisions and the charging arrangements for her care. The Council should consider whether to: exercise discretion not to charge; exercise its discretion not to charge for a time limited period to allow for the land to be sold; offer to temporarily fund the care, with the money to be repaid when the land is sold. If the Council decides to charge for some or all of the care it should clearly explain in writing to Mrs Z the factors it took into account, what the charges would be and what periods will be charged for, and what will happen if the charges are not made and a debt builds up.
• make a symbolic payment to Mrs Y of £1,000 to recognise the distress and difficulties she has experienced as a result of the withdrawal of her care package;
• make a symbolic payment to Mr Y of £250 to recognise the distress and difficulties he has experienced in meeting Mrs Y’s care needs following the withdrawal of her care package;
• make a symbolic payment to Mrs Z of £250 to recognise the distress and difficulties she has experienced in meeting Mrs Y’s care needs following the withdrawal of her care package;
• share this decision with relevant staff and highlight the need to consider the specific circumstances of the individuals concerned when carrying out financial assessments, including whether the circumstances are such that the Council should exercise discretion not to charge for care; and
• provide training/reminders to relevant staff about the need to recognise and act upon safeguarding alerts regarding vulnerable adults, rather than pass them on to adult social care.
75. The Council should take this action within one month of the final decision and should provide us with evidence it has complied with the above actions.

Back to top

Decision

76. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman