Summary: Mr X complained the Council wrongly calculated how much his wife, Mrs X, should pay towards her care fees and delayed issuing him a refund after it later decided she did not need to pay full costs. The Council was at fault for failing to act on a letter Mr X sent to it. This caused him frustration and uncertainty The Council also delayed issuing a later refund to Mr X, which caused him frustration and meant he was unable to earn interest on the sum. To remedy Mr X’s injustice, the Council will apologise and pay him interest on the refunded sum.

The complaint

1. Mr X complained on behalf of his late wife, Mrs X. Mr X said the Council wrongly calculated how much Mrs X should pay towards her care fees and that this led to her paying around £42,000 too much. Mr X also complained the Council took too long to refund the £42,000 when it later changed its decision.
2. Mr X wanted the Council to pay him:
• the value of a mortgage penalty fee he had to pay;
• the value of higher mortgage interest he had to pay;
• the value of the lost interest on the £42,000; and
• a four-figure sum in compensation for upset.

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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 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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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. Mr X complained the Council took too long to refund Mrs X’s care fees to him. Mr X has not complained to the Council about this issue. However, it is closely related to his complaint about how the Council calculated what Mrs X should pay towards her care, so I have included it in my investigation.

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How I considered this complaint

8. I have considered:
• all the information Mr X provided and discussed the complaint with him;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Ombudsman’s guidance on remedies.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

10. 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 (the Regulations) and councils should have regard to the Care and Support Statutory Guidance (the Guidance).
11. 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.
12. 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 but will continue to contribute from their income.

What happened

13. This section sets out the key events in this case and is not intended to be a detailed chronology.
14. Mrs X moved into a nursing care home in early 2022. The Council carried out an assessment of her finances and decided she had funds above the upper capital limit. This meant the Council decided Mrs X needed to pay her nursing home fees in full. Mrs X began paying the fees.
15. Mr X sent the Council a letter in March 2022 which explained that an ISA held in Mrs X’s name contained money intended to pay off the capital on their shared interest only mortgage. Mr X sent the letter alongside financial evidence.
16. The Council received and acted upon the evidence Mr X had enclosed with his letter but has no record of what happened to the letter.
17. To reduce Mrs X’s capital to below the lower capital limit, Mr X used the funds in the ISA to make overpayments on their mortgage debt. Mr X incurred a mortgage penalty fee of £850 when he made the overpayments.
18. Mr X made the overpayments by October 2022, at which point the Council began paying Mrs X’s nursing home fees.
19. In mid-2023, Mr X re-sent the March 2022 letter to the Council. In August 2023, the Council decided it would disregard the value of the ISA in Mrs X’s financial assessment. It initially said it would backdate the disregard to late April 2022, which accounted for the short period of time it would have taken the Council to process and consider the information in the letter, had it come to the financial assessment team along with the enclosed evidence. Mr X challenged this and the Council later agreed to backdate the disregard to the date of the letter; early March 2022.
20. The disregard meant that the Council had decided that from March 2022, Mrs X had capital below the lower threshold, so she should not have paid the full care fees. The Council calculated Mrs X was due a refund of about £42,000.
21. In December 2023, the Council also apologised to Mr X for its delays responding to his letter and offered him £250 in recognition of his injustice. Mr X refused the offer.
22. Mr X received the refund in April 2024.

Findings

23. Mr X sent the Council a letter and financial evidence in early March 2022. The letter contained an explanation that an ISA held in Mrs X’s name was intended to be used to pay off her shared mortgage with Mr X. The Council received and acted on the evidence enclosed with Mr X’s letter so it is likely, on balance, that it received the letter at the same time. The Council was at fault for failing to ensure its financial assessment team received the letter alongside the evidence enclosed with it.
24. When Mr X sent the March 2022 letter to the Council again in 2023, it decided it would disregard the value of the ISA from Mrs X’s capital. The Council was not required under the Regulations or Guidance to disregard the value of the ISA but it used its discretion to do so. As this was a discretionary decision, I cannot say, even on balance, that had the Council received the letter in March 2022, it would have come to the same decision. Therefore, I can only say that the fault set out at paragraph 23 caused Mr X frustration and uncertainty. The Council has already apologised to Mr X for delays responding to his letter, which is an appropriate remedy.
25. Mr X chose to make overpayments on his mortgage to such a level that it incurred a penalty fee. He did this to reduce Mrs X’s capital so she would not need to contribute to her care fees. This was a decision he chose to make and was not due to Council fault.
26. Once the Council decided to disregard the value of the ISA from Mrs X’s financial assessment, it agreed to refund the overpaid care fees of around £42,000. It took eight months for that refund to be received by Mr X. Taking into account that it would always take a short period of time to arrange such a large refund, I am satisfied the Council was at fault for a delay of six months. This caused Mr X avoidable frustration and meant he was not able to earn interest on the substantial sum.

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Agreed action

27. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Mr X for the frustration he felt due to the delay sending him the refunded money. 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.
2. Pay Mr X 4.6% of the sum it refunded to him in April 2024. This, in line with our Guidance on Remedies, is calculated at the average Retail Price Index between November 2023 and April 2024.
28. The Council will provide us with evidence it has complied with the above actions.

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Final decision

29. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.

Investigator’s draft decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman