Summary: Mrs X complained about the way the Council dealt with the financial assessment for her mother, Mrs Y. We did not find fault with the Council’s decision to include a funeral plan in Mrs Y’s financial assessment. However, the Council was at fault for delaying the completion of the financial assessment and its response to Mrs X’s complaint. This caused Mrs X distress and uncertainty. The Council has agreed to apologise and make a payment to Mrs X to recognise this.

The complaint

1. Mrs X complains on behalf of her mother, Mrs Y, about the way the Council dealt with her financial assessment. She complains the Council:

• unfairly included Mrs Y’s funeral plan value when assessing her finances for care fee purposes;
• failed to consider exercising its discretion on this matter;
• delayed for over four months in making its decision, and
• poorly communicated with Mrs X and failed to follow its complaint procedure.

2. Mrs X says this caused her severe distress when dealing with her mother’s affairs.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

7. I have considered the information Mrs X and the Council provided.
8. Mrs X and the Council had the opportunity to comment on my draft decision. I considered these comments before making a final decision.

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What I found

Legislation and guidance

Charging for permanent residential care

9. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014. Councils should also have regard to the Care and Support Statutory Guidance.
10. When a 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 pay an assessed contribution towards their fees.

Care and Support Statutory Guidance (CSSG)

12. The Care and Support Statutory Guidance, issued under the Care Act 2014 provides comprehensive guidance to councils. Annex B, the “Treatment of Capital” details what capital can be disregarded by a Council in the financial assessment process.
13. This provides a comprehensive list of what can be disregarded, which does not include a funeral plan. A council therefore has discretion as to whether to include a funeral plan in a financial assessment.

Council complaint procedure

14. The Council says it will respond to adult social care stage one complaints within 20 working days. It says stage one is responded to by the Council and stage two is for a complainant to complain to the Ombudsman.

Summary of key events

15. Mrs Y was a resident in a care home from December 2018 until her death in October 2023. For most of her time there, she paid the care home fees herself.
16. When Mrs Y’s capital became less than the upper capital limit, Mrs X completed a financial assessment form about Mrs Y’s finances. This was so the Council could assess whether Mrs Y needed to make contributions towards the care home fees. The financial assessment form had a section specifically for funeral plans which Mrs Y completed. This showed that Mrs Y bought a funeral plan in March 2023 which cost around £4000.
17. On 8 July 2023, Mrs X sent this form to the Council.
18. Between July and October, Mrs X contacted the Council several times to ask for the progress of the financial assessment. Council records show the assessment started on 19 September.
19. Mrs Y died at the beginning of October 2023.
20. At the end of November, the Council sent the financial assessment calculation to Mrs X. This showed the Council included 90% of Mrs Y’s funeral plan as a capital asset in her financial assessment.
21. Shortly after this, Mrs X emailed the Council to say she wanted to appeal the Council’s decision to include the funeral plan in Mrs Y’s financial assessment. She was also unhappy the Council had said the funeral plan was an asset that she could cash in, if she wanted to.
22. The Council responded to Mrs X on the same day to say its legal team advised that funeral plans are included in financial assessments as capital. It also said that funeral plans are not listed as capital that can be disregarded in the Care Act Regulations.
23. In mid-December, Mrs X contacted the Council again to say she wished to appeal the decision to include the funeral plan in the financial assessment. Mrs X said if Care Act Regulations are silent on the inclusion of funeral plan costs, then the Council could do the same as other councils and disregard them as assets in financial assessments.
24. The Council responded a short time after. It said it was the legal decision of the Council to include 90% of the funeral plan as capital, which is part of the £14,250 it disregards so a citizen would not be put into financial hardship. The email said that if Mrs X remained unhappy about this, she should complain.
25. On 19 December, Mrs X made a stage one complaint, she said:

• she disagreed with the Council’s decision to include Mrs Y’s funeral plan in her financial assessment;
• the Council had discretion on whether to include funeral plans in financial assessments;
• the funeral plan provider classed the funeral plan as a ‘service’ and not an asset;
• the Council sent the financial assessment to Mrs X at the end of November 2023, however, by this point, Mrs Y had already died. Mrs Y’s funeral had taken place, meaning the plan had been used; and
• this demonstrated that Mrs Y had no intention to cash in the funeral plan, as it had already been used for its rightful purpose. Therefore, the Council should not have included it in the financial assessment.

26. The Council acknowledged the complaint and said it would respond by 18 January 2024.
27. As the Council had not responded to her complaint, Mrs X contacted the Council in February 2024 and again in March 2024 to ask for an update on its investigation.
28. The Council responded in mid-March apologising, as it had failed to pass the complaint to a manager in error. It said it would now deal with the complaint quickly. The Council also asked Mrs X to share any evidence she might have that she could not cash in the funeral plan.
29. Mrs X responded shortly after this to say she could not cash in the funeral plan as it had already been used to pay for Mrs Y’s funeral service four months earlier.
30. On 18 March 2024, the Council responded to Mrs X’s stage one complaint. It said:

• the Care Act 2014 does not mention funeral plans/bonds and it also does not state that funeral plans should be disregarded;
• it had decided to include funeral plans as capital, because most funeral plans can be cashed in, so while the intention is to use them for a funeral, they can be cashed in if needed for other purposes;
• the Council explained this is why it includes 90% of the amount to allow for the 10% selling costs which are usually charged when cashing in;
• the Council also said it included funeral plans in financial assessments to ensure fairness for all citizens, as all citizens would need to pay for a funeral. The Council’s view is if it disregarded funeral plans, this would be an unfair advantage for residents who bought a plan, compared to residents who set aside money for a funeral in a savings account;
• the Council highlighted the Care Act 2014 allows individuals to have £14,250 which is not considered in a financial assessment. The Council said this money could be used for a funeral;
• the Council acknowledged Mrs X’s view, that she could not cash in the funeral plan, as the funeral had already happened. However, it said the assessment period was for the time that Mrs Y was a resident at the care home. The Council explained that regardless of the assessment outcome, the funeral plan could have been cashed in at any point;
• it said, if Mrs X could provide paperwork to evidence the terms and conditions of the funeral plan stating that it could not have been cashed in, then it may reconsider its decision; and
• the Council concluded it did not uphold Mrs X’s complaint.

Council response to my enquiries

31. In response to my enquiries, the Council said it sought legal advice about the matter of financial assessments several years ago and again in May 2024. The Council said following this advice, it decided to treat funeral plans as capital assets.
32. The Council decided, as the funeral plan could be sold, it remains of the view that not to consider it as an asset would penalise those citizens who have made a cash provision for a funeral.
33. The Council also acknowledged there had been a delay in completing the financial assessment. It said this was due to a backlog of work which meant there was a delay in allocating a financial assessment officer to complete the assessment. The Council said, at the time, it was aware of the backlog and employed agency staff to reduce this. The Council said there was also a delay in completing the financial assessment due to delays in discussing the case with the brokerage team.

Analysis

The inclusion of the funeral plan in the financial assessment

34. Mrs X complained the Council unfairly included Mrs Y’s funeral plan value when assessing her finances for care fee purposes.
35. 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 not properly explained a decision it has made.
36. However, we do not make operational or policy decisions on councils’ behalf, provide a right of appeal against decisions, or seek to replace their judgement with our own. If a council has made a decision without fault, then we cannot criticise it, no matter how strongly a complainant feels it is wrong. We do not uphold complaints simply because someone feels a council should have done something different.
37. What that means in this particular case is that it is not for me to make my own judgement about whether Mrs Y’s funeral plan should have been included in her financial assessment. However, I can consider whether the Council properly made and explained its decisions about this.
38. The law relating to what capital can be disregarded in a financial assessment is clear. The CSSG provides a comprehensive list of what should be disregarded in a financial assessment, and this does not include a funeral plan. This therefore gives a council flexibility with its charging, and discretion to choose whether to disregard other types of capital, such as funeral plans.
39. Mrs Y took out the funeral plan in March 2023, prior to her death in October 2023. The Council has been clear that for many years, following legal advice, it has decided to include funeral plans in financial assessments for consistency and fairness. It has explained its view that the £14,250 that is already disregarded within a financial assessment could be used towards funeral costs.
40. The Council explained that it sought legal advice again in May 2024, following this complaint, to ensure it was still following the law. It then again decided to include funeral plans in financial assessments following this advice.
41. I understand that this is a decision Mrs X does not agree with, however, this was a decision the Council was entitled to make, and I find no fault in this element of Mrs X’s complaint.
42. Mrs X also complained that following the financial assessment, the Council failed to consider exercising discretion on disregarding the funeral plan, despite it having already been used for its correct purpose, before the completion of the financial assessment.
43. Again, it is not for the Ombudsman to decide whether the Council should have exercised discretion. Instead, we investigate whether the Council has properly considered and explained its decision about this.
44. The Council acknowledged one of the points of Mrs X’s complaint, that she could not cash in the funeral plan, because it had already been used for its rightful purpose in paying for the funeral that had already taken place. After considering this point, the Council decided that the assessment period was for the time that Mrs Y was a resident at the care home. It explained that, at this time, the funeral plan could have been cashed in, if needed.
45. The Council did say that if Mrs X could provide evidence that the terms and conditions of the funeral plan stated it could not have been cashed in, then it would reconsider its decision.
46. The Council has evidenced that it has consulted with the guidance and been open to considering Mrs Y’s individual circumstances; by saying it would reconsider its decision if Mrs X could provide evidence the funeral plan could not have been cashed in.
47. As Mrs X did not provide any evidence about this, the Council did not reconsider this matter. I therefore find no fault in this element of Mrs X’s complaint.

Timeframe for completing the financial assessment

48. In response to my enquiries, the Council acknowledged there had been a delay in completing the financial assessment which it said was because of a backlog of work in the department.
49. Although there is no specific timeframe set out in the Care Act for completing financial assessments, we would expect these to be processed without delay. Mrs X sent the Council the financial assessment form at the beginning of July 2023. The Council finished the financial assessment at the end of November 2023. This period of almost five months is a significant delay. This is fault that has caused Mrs X frustration as she had to keep asking the Council for updates and was uncertain about the care contributions Mrs Y would need to make. I have recommended a personal remedy for this.
50. The Council has already told me that at the time, it employed agency staff to reduce this backlog of work. I do not consider it necessary to make any further service improvements related to this.

Communication with Mrs X

51. Mrs X also complained the Council poorly communicated with her.
52. There is evidence that Mrs X had to chase the Council on several occasions to ask for an update on the completion of the financial assessment. I have already found fault on this matter and I have recommended a remedy.
53. Mrs X also contacted the Council on two occasions to say she wished to appeal its decision to include the funeral plan in Mrs Y’s financial assessment. The Council responded to Mrs X promptly about this matter, within a few days, and so I find no fault with the Council’s actions.
54. In addition, Mrs X complained that the Council failed to follow its complaint procedure.
55. The Council has already accepted and apologised to Mrs X for failing to follow its complaint procedure.
56. The Council’s complaint policy says it will respond to stage one complaints within 20 working days. In this case, it took the Council over three months to respond. The Council also failed to respond to Mrs X chasing the update of the complaint. These actions are fault which caused Mrs X frustration. The Council has already apologised for this, however, I have recommended a further remedy.

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Agreed action

57. Within a month of the date of my final decision, the Council will:

• apologise to Mrs X for the frustration and uncertainty caused by its delay in completing Mrs Y’s financial assessment. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology; and
• make a symbolic payment of £200 to Mrs X to recognise the frustration caused by its delay in completing the financial assessment and responding to her complaint.

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

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Final decision

59. I have completed my investigation with a finding of fault causing injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman