Summary: Mr X complained about the standard of care his deceased father, Mr Y, received and about the Council’s financial assessments. Mr X said the standard of care was poor and the charges were unaffordable. We found the Council at fault for failing to show it explained the financial assessment process to Mr Y in a way he could understand following his capacity assessment, and for failing to properly record or communicate its decision on Mr Y’s disability related expenditure. The Council will apologise for the uncertainty and distress this caused, and review its decision.

The complaint

1. Mr X complained about the standard of care his deceased father, Mr Y, received and about the Council’s financial assessments.
2. Mr X said the level of care from a care provider was poor, and the Council’s financial assessments were not accurate. He said the Council is trying to recover care charges that were unaffordable based on Mr Y’s finances.

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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. 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

5. I investigated the Council’s assessment of Mr Y’s finances and the outstanding care charges. I did not investigate the standard of care Mr Y received, as this was addressed by the Council in 2019 and 2021 and is now a late complaint.

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How I considered this complaint

6. As part of the investigation, I considered the complaint and the information Mr X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. 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

Charging for social care

9. A council has 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. A council can choose to charge for non-residential care following a person’s needs assessment. 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, section 14 and 17)
10. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. Councils should ensure this is provided in a manner the person can easily understand, in line with their duties on providing information and advice.
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 is entitled to access council support to meet their eligible needs.
12. The upper capital limit is currently set at £23,250. Below this level, a person can seek means-tested support from a council. This means the council will undertake a financial assessment of the person’s assets and will make a charge based on what the person can afford to pay. In the financial assessment capital below the lower capital limit – currently set at £14,250 – is not taken into account in the assessment of what a person can pay in tariff income assessed against their capital. Where a person’s resources are below the lower capital limit of £14,250 they will not need to contribute to the cost of their care and support from their capital. (Care and support statutory guidance, paragraph 8.12)
13. In assessing what a person can afford to pay, a council must take into account their income. There are different approaches to how income is treated depending on whether a person is in a care home or receiving care and support in their own home.
14. 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. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by national government and reviewed each year. A council can allow people to keep more than the MIG. (Care Act 2014)
15. Where a person lacks capacity, they may still be assessed as being able to contribute towards the cost of their care. However, a council must put in place policies regarding how they communicate, how they carry out financial assessments and how they collect any debts that take into consideration the capacity of the person as well as any illness or condition. Councils are expected to use their social work skills both to communicate with people and also to design a system that works with, and for, very vulnerable people. Sometimes it is useful to consult with and engage with family members; however, family members may not have the legal right to access the person’s bank accounts. Where possible, councils should work with someone who has the legal authority to make financial decisions on behalf of a person who lacks capacity. If there is no such person, then an approach to the Court of Protection is required. (Care and support statutory guidance, paragraph 8.9)

Disability related expenditure

16. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. The Care and Support Statutory Guidance sets out a list of examples of such expenditure. It says any reasonable additional costs directly related to a person's disability should be included. What counts as DRE should not be limited to what is necessary for care and support. For example, above average heating costs should be considered.

The Council’s charging policy

17. The Council calculates DRE as a weekly amount and aims to allow for reasonable extra expenditure needed for independent living by the person.
18. The Council will not normally consider DRE reasonable if:
• The expenses can be considered normal living costs most people have to pay.
• The expenses can be avoided by making use of freely available community services.
• Cheaper or more cost-effective equivalent services could reasonably be used.
• The expenses relate to care or services provided by the NHS or Council.
• Other funds or grants exist to cover the cost of the expenses.
19. This is not an exhaustive list, and the Council will consider DRE on a case-by-case basis.

What happened

20. I have summarised below some key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
21. Mr Y had a package of care and support from the Council. Carers would visit him in his home to help meet his daily support needs.
22. The Council wrote to Mr Y in August 2018 after completing a financial assessment. It said the maximum amount it could charge Mr Y was £84.88 a week, based on his weekly income of £293.33.
23. The Council wrote to Mr Y again in March 2019 after completing another financial assessment. It said his weekly contribution increased to £144.18 as he was receiving the attendance allowance of £57.30 per week.
24. The Council also wrote to Mr Y in May 2019, confirming his weekly contribution would be £146.72 as from 6 May 2019.
25. Mr X wrote to the Council in September 2020, questioning the financial assessment. He did not agree with the amount Mr Y had to contribute. He said it did not leave Mr Y enough for his DRE.
26. The Council asked Mr X for evidence if he believed the figures in the financial assessment are wrong. It also gave him a DRE form to complete.
27. The Council wrote to Mr Y in June 2021. It said his weekly contribution would be £165.61 as from 31 May 2021. It also said Mr Y’s social worker would consider his DRE and the Council would issue a revised financial assessment if approved.
28. The Council adjusted Mr Y’s weekly contribution to £158 in September 2021, after allowing some DRE. This included £5 for a security system, £3.69 for specialist equipment, and £3.92 for laundry, as well as the £21.78 already agreed for council tax.
29. The Council refused to allow a television subscription, because it said there was no evidence Mr Y’s costs were higher than average or that this was DRE. It refused allowances for gardening and transport, as Mr X did this for free and there was no evidence of actual costs. It refused an allowance for Mr Y’s shoes, as there was no evidence this was a DRE. And last it refused to give an allowance for incontinence pads, as they are available for free on the NHS.
30. From March 2022, Mr Y received 18 care visits a week, costing £153. Mr Y’s care from the care provider then broke down.
31. The Council wrote to Mr Y in April 2022. It said each year it reassesses the contribution he has to make to the cost of his care. It confirmed the amount he must pay from April was £159.14 a week. It attached a form explaining how the Council calculated his contribution.
32. The Council re-assessed Mr Y’s needs in June 2022. He needed daily support with tasks and personal hygiene. He was also at risk of falls. The Council decided Mr Y needed more care and support.
33. The Council started a new, increased, package of care for Mr Y in July 2022.
34. Mr Y sadly passed away in August 2022.
35. Mr X complained to the Council in October 2022 after receiving an invoice of £17,556.40 for Mr Y’s outstanding care charges. Mr X asked how the Council calculated the invoice. He said Mr Y’s financial assessment was wrong, as the charges would have left him destitute. He said Mr Y had no savings and his final bank balance was only £13,847.20, which is below the lower threshold of £14,250, so he should not have to contribute to the cost of his care. He also said Mr Y should have had DRE allowances, but the Council did not appear to have factored this in. Mr X referred to Mr Y’s high heating costs, which he said resulted from Mr Y’s poor circulation, linked to his disability. He attached an electricity bill showing charges of £3,141.19 for the year between July 2021 and July 2022.
36. The Council did not uphold Mr X’s complaint. It said there were no inaccuracies in its financial assessments, but it would review this if Mr X had further information. It said anyone with less than £23,250 can ask for funding, but the Council has to financially assess them based on income and capital. It disregarded Mr Y’s home and did not include any capital in his assessments. It also said it agreed DRE in September 2021.

My investigation

37. Mr X told me he was made aware of the debt shortly after probate and was shocked. A solicitor told him Mr Y did not have enough savings to be charged for his care.
38. Mr X said he found letters from the Council about Mr Y’s assessed weekly contribution. Some were based on 9.5 hours of care a week, other 21 hours a week. However, Mr X said Mr Y only received 7 hours of care a week. He also said the Council charged Mr Y up to 19 August 2022, despite him being in hospital from 10 July and passing away on 6 August.
39. Mr X told me he sent the Council evidence of Mr Y’s DRE, but the Council ignored it. He said Mr Y’s expenses included excessive heating and energy costs, maintenance to the home (such as replacing carpets), gardening (to make it safe for him with his mobility issues), and pet expenses (as his pets helped with his mental health).
40. The Council confirmed the total outstanding charges are £17,556.40, and provided me with a statement showing the breakdown. It said the arrears built up because Mr Y was not paying his client contribution from 2019 to 2022.
41. The Council told me it assessed Mr Y as lacking capacity over his finances on 22 December 2021.
42. The Council could not confirm whether it wrote to Mr Y or his family confirming his new weekly price when a new care provider took over his care package in June 2022. The Council confirmed it did not carry out a new financial assessment at that time. The Council said it has no evidence of how it reached its decision on what DRE to allow when it assessed Mr Y’s finances. The Council told me it had no standard rates for DRE in 2021/22. It considered each request on its merits.

Analysis

43. I appreciate Mr Y’s savings and capital may have been below the lower financial threshold. However, that does not mean a person is entitled to free care and support. The Statutory Guidance confirms people with capital below the upper limit of £23,250 are subject to a means tested financial assessment. This assessment will not include the person’s capital or savings, it will assess their income. That is what happened here. The Council was therefore not at fault in assessing Mr Y should contribute to the cost of his care from his income.
44. The Council provided me with Mr Y’s case notes. Unfortunately, they do not contain details on what financial advice or information the Council gave. The Council has a duty to provide financial information to people in a way they can understand, so they can make informed decisions. I have seen evidence the Council wrote to Mr Y after it completed financial assessments and confirmed his charges. I also saw evidence it sent a charging information leaflet in April 2022. However, the Council said it assessed Mr Y as lacking capacity in December 2021. I have not seen evidence the Council explained the financial assessment process to Mr Y in a way that he could understand, or that it instead included family members in decision making. This is fault. It is important the Council’s case notes record the conversations officers have with people about charging.
45. The case notes are also silent on the Council’s consideration of Mr Y’s DRE. The Council also did not have set rates for DRE in 2021. I am therefore unclear why the Council gave the amounts it did for the DRE it accepted.
46. The Council did provide me with Mr Y’s DRE assessment form, and its charging policy for 2024. This has a link to its adult social care rates document for 2024/25.
47. The Council allowed £3.69 a week for a mobility scooter (costing £1,595) and a wheelchair (costing £250). It arrived at the figure of £3.69 by dividing the total costs by 500. This is not a calculation mentioned in the 2024/25 rates document and, due to lack of evidence, I do not know why the Council used this calculation.
48. I considered the same costs using the 2024/25 rates. On the evidence seen, the allowance for a mobility scooter now would be about £3 a week. When calculating this I assumed the Council would class this as a purchase of equipment, excluding wheelchairs.
49. Wheelchairs have their own section of the 2024/25 rates document, with a maximum allowance of £4.94 a week. The wheelchair cost £250. If this was spread weekly over a year (i.e. divided by 52) the allowance would be £4.80.
50. Based on the 2024/25 rates, on the evidence seen Mr Y would have been entitled to £7.80 a week for his mobility scooter and wheelchair, significantly more than £3.69 a week the Council allowed. Though, as above, without further evidence and without defined rates for 2021/22, I cannot make a further finding on this.
51. The Council allowed £3.92 a week for Mr Y’s laundry costs. The current rates document states up to £4.74, for more than four washes a week. I do not know Mr Y’s actual laundry costs, or how many loads he needed to do a week. However, the amount the Council allowed is not significantly lower than the top rate using current figures.
52. The Council allowed £5 a week for Mr Y’s security system. The 2024/25 rates document has a link to a pricing document for Telecare systems. The Council allows either £4.25 a week or £6.25 a week, depending on the package (gold or silver). I do not know which service Mr Y had but, on the evidence seen, £5 a week appears to be in the same range.
53. However, I found the Council did not explain its decision making to Mr X or Mr Y, or give reasons for the allowances it agreed. This is fault.
54. I did not find fault in the Council’s refusal to make an allowance for a television subscription, gardening, transport costs, shoes, or incontinence pads.
55. Again, however, I found the Council did not communicate this decision to Mr X or Mr Y, which is fault.
56. When Mr X complained he gave the Council details of Mr Y’s energy bill, and claimed the Council should have allowed more DRE for Mr Y’s increased heating use linked to his disability. I have not seen evidence the Council considered energy costs when it assessed Mr Y’s DRE in 2021. I have also not seen evidence the Council considered this at the complaint stage. It would appear this was new information, and the Council therefore should have considered it and confirmed whether Mr Y was entitled to more DRE. Its failure to do so is fault.
57. I cannot say the Council should have awarded Mr Y more DRE. However, its failure to provide sufficient information in a suitable format, and its lack of records about its decision on DRE caused Mr X avoidable uncertainty and distress about whether the charges are correct. This is his injustice.

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Agreed Action

58. Within four weeks of my final decision, the Council will:
• Apologise to Mr X for failing to show it explained the financial assessment process to Mr Y in a way he could understand following his capacity assessment, and for failing to properly record or communicate its consideration of Mr Y’s DRE. 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.
• Review Mr Y’s DRE and provide a decision letter to Mr X clearly explaining its decision and calculations. This should include the increased heating costs Mr X claimed when he complained. The Council should exercise its discretion and allow Mr Y the benefit of the doubt for any missing information due to the passage of time. If this results in a higher allowance than the Council previously awarded, it should amend Mr Y’s financial assessments and outstanding charges accordingly.
59. Within three months of my final decision, the Council will:
• Review its adult social care and financial assessment procedures in light of this decision to identify areas where it can improve practice and any staff training needs. This should include its recording and communication of key decisions, particularly around DRE, and how to provide financial information after a failed capacity assessment.
60. The Council should provide us with evidence it has complied with the above actions.

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Final Decision

61. I found the Council at fault for failing to show it explained the financial assessment process to Mr Y in a way he could understand following his capacity assessment, and for failing to properly record or communicate its consideration of Mr Y’s DRE.

Investigator’ decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman