Summary: On behalf of his mother, Mrs B, Mr Z complained about the way the Council handled Mrs B’s care charges following a change to her financial circumstances in November 2022. We have found the Council at fault for failing to recalculate Mrs B’s care charges to include the agreed discretionary disregard of her property. This has caused the family distress, frustration and uncertainty. The Council has agreed to apologise and provide Mr Z an updated breakdown of Mrs B’s care charges.

The complaint

1. On behalf of his mother, Mrs B, Mr Z complained about the way in which the Council handled Mrs B’s care charges following a change to her financial circumstances in November 2022. Mr Z believes the financial assessments have not been correctly completed which has led to Mrs B being incorrectly charged for her care. Mr Z says this has caused stress and frustration and he has spent time and trouble trying to resolve the matter. Mr Z would like the Council to:
• complete a revised financial assessment.
• revoke the outstanding invoices and reissue them with the correct amounts due.
• provide a clear explanation and breakdown of the costs and calculations.
• comply with clause 47 of the Council’s adult social care charging policy.

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The Ombudsman’s role and powers

2. 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)
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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How I considered this complaint

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

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What I found

Legal and administrative background

Charging for permanent residential care

7. 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 and councils should have regard to the Care and Support Statutory Guidance.
8. 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.
9. 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.

Property disregards

10. For the purpose of financial assessment, the person’s main or only home must be disregarded where the person no longer occupies the property but it is occupied in whole or in part as their main or only home by a qualifying person.
11. If this property disregard unexpectedly comes to an end, the Council must disregard the value of the person’s main or only home for 12 weeks, when the value of their non-housing assets is below the upper capital limit.
12. Council’s may use discretion to apply the property disregard in other circumstances but must balance this with ensuring the person’s assets are not maintained at public expense.

Deferred payments

13. The Care Act 2014 established a universal deferred payment scheme. By taking out a deferred payment agreement (DPA) a person can delay paying the cost of their care and support until a later date.
14. Council’s must offer DPA’s to people who meet all the criteria set out below:
• Anyone who has eligible needs which the Council decides should be met in residential care.
• The person has less than £23,250 in assets, excluding the value of their home.
• The person’s home is not disregarded.
15. A Council may refuse a deferred payment agreement despite someone meeting the qualifying criteria:
• Where the Council is unable to secure a first charge on the person’s property.
• Where someone is seeking a top up.
• Where a person does not agree to the terms and conditions of the agreement, for example a requirement to insure and maintain the property.

The Council’s charging policy

16. Section 47 of the Council’s adult social care charging policy states that in cases of lengthy financial assessments, charges will not apply to a period any longer than 8 weeks prior to the notification date of the completed financial assessment.

What happened

17. The following is a summary of key events. It is not intended to be a detailed chronology.
18. Mrs B became a resident at a nursing home in May 2022. Initially this placement was on a trial basis. In August 2022, a best interests meeting decided it was best for Mrs B to remain there permanently. At this time, Mrs B’s husband, Mr B, remained living in their home and the property was disregarded.
19. In November 2022, Mr B passed away, meaning the property disregard ended.
20. The Council completed a revised financial assessment which determined Mrs B was assessed to pay the full cost of her care from the end of November 2022. The charge was applied because the Council assessed Mrs B to have capital above the upper limit.
21. This assessment did not take Mrs B’s property into account, it was based on the funds available in Mrs B’s bank accounts at the time of the assessment. The Council estimated Mrs B’s capital would fall below the upper limit by the end of December 2022, at which time her care contributions would reduce until the 12 week property disregard ended in February 2023.
22. The financial assessment included details of the deferred payment scheme and advised Mr Z to contact the Council’s financial assessment and benefit team straightaway if he believed Mrs B’s capital was different to that used in the calculation. The letter advises a review of the contribution cannot be made until evidence is received.
23. Mr Z disagreed with the Council’s calculations of Mrs B’s capital as he believed a portion of the funds used in the calculation belonged to Mr B’s estate. The Council has requested evidence from Mr Z to support this as it cannot complete a reassessment without this evidence. To date, Mr Z has not provided the Council with the necessary evidence to allow it to complete a reassessment of Mrs B’s capital during this time period.
24. In March 2023 the Council became aware Mrs B’s property was not registered with His Majesty’s Land Registry (HMLR). This meant Mr Z was unable to apply for a deferred payment agreement on Mrs B’s behalf as the loan would not be secure.
25. Mr Z contacted the Council on multiple occasions between April 2023 and December 2023 to advise he was unable to apply for the deferred payment agreement as the property was not registered with HMLR. Mr Z also raised concerns about the financial assessment and fees due to the care provider.
26. The Council advised Mr Z he could register the property with HMLR once he received a grant of probate. Once the property was registered, a deferred payment agreement could be arranged.
27. Mr Z did not receive the grant of probate until March 2024. After seeking legal advice, Mr Z told the Council he did not intend to register the property and apply for a deferred payment agreement, he wanted to sell the property as this was the quicker option.
28. In response to our enquiries the Council explained it did claw back some of Mrs B’s care fees between 2022 and 2023. This was due to an open ended invoice being retrospectively ended in May 2023. The Council told us this clawback was repaid after September 2023 so overall, no amount has been left clawed back. This clawback of fees led to the care provider contacting Mr Z about overdue care fees and it requested payment to secure Mrs B’s placement. The Council became aware Mrs B’s placement was at risk due to the unpaid fees. Due to this risk the Council agreed to fund Mrs B’s placement while the deferred payment agreement was arranged or the property was sold.
29. Mr Z submitted a complaint to the Council in December 2023. In March 2024 the Council issued a stage two complaint response to Mr Z which partially upheld his complaint. In the stage two complaint response the investigating officer made three recommendations for actions the Council should take to remedy the injustice caused to Mrs B and Mr Z by the faults identified.
30. The investigating officer recommended the Council:
• Appoint a single point of contact to coordinate the case, obtain updates and answer any questions Mr Z may have. Although various Council teams continued to contact Mr Z as part of their individual responsibilities, a single point of contact was appointed by July 2024. There was a change in who the single point of contact was, but this is not fault.
• Meet with Mr Z via Microsoft Teams to address his unanswered questions with a view to moving the case forward. This meeting took place at the beginning of April 2024.
• Make a £200 financial goodwill gesture to Mr Z to recognise the lack of clarity and communication he has encountered and the time and trouble he has taken in pursuing his complaint. Mr Z told us he has not received this payment.

My findings

31. I do not find the Council at fault for the financial assessment dated April 2023. This assessment does not include Mrs B’s property and took account only of the funds available in Mrs B’s bank accounts. I am aware Mr Z disagrees with this financial assessment, but he has failed to provide the evidence necessary to allow the Council to reassess Mrs B’s finances for this period, despite receiving multiple requests.
32. I have not seen any evidence to suggest the financial assessment was a lengthy process in accordance with section 47 of the Council’s adult social care charging policy.
33. The Council is not at fault for refusing to accept a deferred payment agreement based on the property not being registered with HMLR. The law is clear that Councils can refuse arrangements if they are unable to secure a first charge on the property. The Council correctly advised Mr Z he could apply for a deferred payment arrangement once the property was registered. The Council had no control over the delays to Mr Z receiving the grant of probate, and once this was received, Mr Z chose not to register the property.
34. The Council provided confusing and inconsistent information to Mr Z between November 2022 and March 2024 due to the unforeseen circumstance of Mrs B’s property not being eligible for a deferred payment agreement. The Council has acknowledged the lack of clarity in its communication with Mr Z and agreed to disregard the property until it is sold. The Council’s decision to apply a discretionary disregard and fund Mrs B’s care until the property was sold remedies the injustice caused to Mrs B and Mr Z.
35. I have not seen evidence the Council has provided Mr Z a recalculation of Mrs B’s care charges which takes the discretionary property disregard into account and provides an accurate calculation of the contribution she owes. This is fault which caused Mrs B and Mr Z uncertainty, frustration and distress.
36. The Council has not provided Mr Z the £200 financial goodwill gesture offered as part of the stage two complaint response. Mr Z told us he declined to respond to this offer as he did not accept the Council’s complaint findings.

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Action

37. Within one month of the final decision the Council should:
• Apologise to Mr Z for the faults identified. 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 its apology.
• Provide Mr Z with a recalculation of Mrs B’s care charges for the period between 23 December 2022 and the date the property sold in March 2025, during which the Council agreed to disregard Mrs B’s property.
• Re-offer Mr Z the £200 financial goodwill gesture which was recommended in the stage two complaint response to recognise the lack of clarity and communication he has encountered and the time and trouble he has taken in pursuing his complaint.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

39. I find fault causing injustice. I have made recommendations to remedy the injustice caused by the faults identified.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman