Summary: Miss X complained that the Council did not tell her that her late mother’s, Mrs T, placement at a nursing home required a third-party fee to be paid in addition to the Council’s payment to the care home which has left her with a significant care fees debt to pay. There was no fault by the Council with how it calculated and charged Mrs T for her nursing care fees. But there was fault by the Council’s for its slight delay in completing Mrs T’s financial assessment, but this caused no injustice to Mrs T. The Council was also at fault for its failure to take proactive steps to recover Mrs T’s accrued care fees debt. This caused an injustice to Miss X and the Council will take action to remedy the injustice caused.

The complaint

1. Miss X complained on behalf of her deceased mother, Mrs T.
2. Miss X complained the Council did not tell her that Mrs T’s placement at a nursing home required a third-party fee to be paid in addition to the Council’s payment to the care home. Miss X said as a result, the Council billed her for a debt of £20,202.79 for Mrs T’s care fees after she died.
3. Miss X said the matter left her with a substantial bill she cannot afford, it caused her worry, impacted her mental health significantly and she had not been able to grieve the loss of Mrs T.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. 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

9. Miss X made a complaint to the Ombudsman in January 2025 which means my investigation should start from January 2024 (12 months before Miss X made a complaint to the Ombudsman). However, Miss X said she only became aware of Mrs T’s outstanding care fees in March 2024 which had been accrued from 2021. To make a meaningful investigation, I have exercised discretion to investigate matters from 2021.
10. Therefore, I have investigated matters from June 2021 to January 2025. This covers the period from when the Council assessed Mrs T and found she was eligible for 24-hour care and support needs to when Miss X made a complaint to the Ombudsman.

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How I considered this complaint

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

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What I found

Law and guidance

13. The Care Act 2014, the Care and Support Statutory Guidance 2014 and the Care Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support, and its powers to charge.
14. Councils must carry out a financial assessment to make a decision about care charges. This will assess the person’s capital and income. The upper capital limit is currently set at £23,250 and the lower at £14,250. A person with assets above the upper capital limit is required to pay for their own care. Even if the capital is below the threshold of £23,250, residents may have to pay a contribution from their income towards their care.
15. Once a council completes the financial assessment, it must give a written record of the assessment to the person. It should explain how the assessment has been carried out, what the charge will be, how often it will be made and if there is any fluctuation in charges, the reason. Councils should ensure that this is provided in a manner that the person can easily understand, in line with its duties on providing information and advice.
16. Third-party top up fees applies where a resident chooses a care home with fees exceeding the amount the council is willing to pay, and a relative, friend or other party (not the resident) agrees to cover the difference in the care fees.
17. Mental Capacity - A person aged 16 or over must be presumed to have capacity to make a decision unless it is established, they lack capacity. Where someone’s capacity is in doubt, councils must assess the person’s ability to make a decision. Councils must follow the law set out in the Mental Capacity Act 2005 to decide if individuals can make choices about their care and may need to carry out an assessment of capacity if there is doubt.
18. Power of Attorney – is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or finances and property, for when they become unable to do so for themselves. The ‘attorney’ is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.

Background

19. Miss X and her late mother, Mrs T, used to live together before Mrs T was admitted into the hospital following an accident. Miss X managed Mrs T’s finances, but she did not have a power of attorney.
20. Mrs T was discharged from hospital to a care home for rehabilitation and for a care and support needs assessment to be completed for her.
21. A mental capacity act (MCA) assessment was completed for Mrs T to determine if she had capacity to make decisions about her care needs and she was found to lack capacity in this area. The Council said it did not complete an MCA assessment for Mrs T relating to her finances because there was no reason to do so.

Key events

22. In June 2021, the Council conducted a care and support needs assessment for Mrs T, and she was found eligible to receive 24-hour care at a nursing home. Mrs T told the Council that Miss X managed everything for her. The care and support needs assessment record stated the Council discussed with Miss X the need to complete a financial assessment (FA) for Mrs T to determine how her care fees would be funded. Miss X told the Council that the family would not be able to afford to pay third-party top ups for Mrs T’s care fees. The Council sent a copy of its care home charging policy to Miss X.
23. The Council searched and found a 24-hour nursing care home for Mrs T which required no third-party top up fees.
24. In early September, the Council asked Miss X to provide it with Mrs T’s financial information and documents, so it could complete an FA for Mrs T. Miss X did not submit Mrs T’s financial information as requested by the Council.
25. On 28 September, Mrs T moved into the nursing care home.
26. After Mrs T moved to the care home, the Council continued to chase Miss X for Mrs T’s financial information until March 2022. The Council in its correspondence to Miss X, explained the FA process and attached its care home charging policy again. The Council informed Miss X that it needed to complete an FA for Mrs T as soon as possible otherwise Mrs T could be charged for the full cost of her care fees.
27. In March 2022, Miss X provided the Council with Mrs T’s financial information.
28. On 10 May, the Council completed a provisional FA for Mrs T, and it subsequently completed a full FA on 23 May. Mrs T’s weekly assessed client contribution for both the provisional and the full FAs were the same:

• £152.20 per week from 28 September 2021
• £152.20 per week from 26 October 2021
• £156.95 per week from 11 April 2022.

29. The Council sent both FA letters to Miss X’s home address. The letters stated the weekly fees were Mrs T’s assessed client contribution and not third-party top up contribution. The letters also explained an invoice would be issued to Mrs T once every four weeks and advised regular payments should be made to avoid potential legal proceedings and additional costs.
30. The Council reassessed Mrs T’s client contribution for the 2023/2024 financial year and her weekly reassessed contribution was £172.80 per week from 10 April 2023. The Council sent the FA letter to Mrs T’s care home address.
31. Mrs T continued to stay at the 24-hour nursing care home until she died in February 2024.
32. Between June 2022 and February 2024, the Council issued Mrs T with all her care fees invoices. The Council sent all the invoices to the nursing care home address, and it covered the period from September 2021 to February 2024.
33. In March 2024, the Council sent Miss X a final bill of £20,202.79. The bill was the total outstanding balance for Mrs T’s care fees from September 2021 to February 2024.
34. The Council sent reminders to Miss X for Mrs T’s outstanding £20,202.79 care fees.
35. Miss X made a complaint to the Council for its lack of communication with her about Mrs T’s care fees. Miss X said she was not aware of any third-party top up fees, and neither was she aware of Mrs T’s accrued care fees until she passed away. Miss X questioned why the Council sent the invoices to Mrs T at the care home and not to her.
36. The Council responded and it:

• said it discussed FA with Miss X prior to and after Mrs T moved to the nursing care home and that it also sent her its care home charging policy.
• said its record showed Mrs T had lived at Miss X’s address before she moved to a nursing home and that was why it sent Mrs T’s FA letters to Miss X’s home address in May 2022. The Council said the letters set out Mrs T’s weekly assessed client contribution towards her care fees.
• said although its records showed Miss X supported Mrs T with her finances, there were no concerns about Mrs T’s capacity to manage her finances when she was assessed to need 24-hour care. It also said Miss X did not have the power of attorney for Mrs T.
• said it sent all Mrs T’s invoices to her when she was resident at the care home. It said the care home confirmed all the correspondence the Council sent to Mrs T was passed on to Miss X.
• explained that once a service user passes away, further correspondence, including any outstanding debt would be sent to their next of kin which was why Miss X received Mrs T’s final bill of £20,202.79 care fees debt.
• said it followed the correct charging process and that Mrs T’s care fees remained outstanding.

37. Miss X remained dissatisfied with the Council’s response, and she made a complaint to the Ombudsman.
38. In its response to our enquiries, the Council said:
1. it did not complete an FA for Mrs T’s until May 2022 because Miss X did not provide it with Mrs T’s financial information in a timely manner.
2. when Miss X provided Mrs T’s financial information in March 2022, it was not passed to its charging team until 18 May which was why a provisional FA was initially completed on 10 May.
3. the nursing care home said although it did not formally record it on its system, it confirmed all the correspondence the Council sent to Mrs T when she was a resident were passed to Miss X.
4. Mrs T’s outstanding bill of £20,202.79 was solely made up of her assessed client contribution towards her care fees and it was not made up of third-party top up fees.
5. no payment was received for Mrs T’s care fees at the nursing home and the total bill of £20,202.79 remained outstanding.

Analysis

39. Before Mrs T moved to a nursing care home, the Council discussed the FA process with Miss X and sent her a copy of its charging policy. The Council also discussed the requirements for any third-party top up fees and Miss X informed the Council the family could not afford third-party top ups. The Council then provided Mrs T with a nursing care home within the Council’s rate, based on the information given to it by Miss X that the family was unable to afford a placement which required third-party top up fees. These were not faults. I find the Council informed Miss X and she was aware that Mrs T might have had to contribute towards her care charges.
40. The Council asked Miss X on several occasions between September 2021 and March 2022 to provide it with Mrs T’s financial information so it could complete an FA for her to determine any client contributions required towards Mrs T’s nursing care. When the Council completed the provisional and full FAs for Mrs T, it sent both FA outcomes to Miss X’s home address. I therefore find Miss X would have been alerted to the fact that Mrs T would have been expected to pay towards her care fees. This was not fault.
41. Although the law and guidance do not specify a timescale for completing an FA, councils are expected to complete FAs in a timely manner. In this case, the Council did not complete an FA for Mrs T until May 2022. This was approximately eight months after Mrs T moved into the nursing care home (September 2021 to May 2022). This was a significant delay, but the delay was caused partly because it took Miss X about six months to submit the relevant financial information for Mrs T as requested by the Council. And then it took the Council approximately two months to complete the FA for Mrs T after it received her financial information in March 2022. This was fault but I find the Council’s two-month delay did not cause any injustice to Mrs T. This is because no payments had been made towards her care costs to date.
42. Miss X said she did not receive any of the invoices the Council issued to Mrs T when she was at the care home. But the Council said the care home confirmed it passed all Mrs T’s correspondence to Miss X. Where there is a conflict of evidence, we base our findings on what was more likely to have happened. In this case, on balance of probabilities, I find Mrs T’s invoices which the Council sent to her between June 2022 and February 2024 to cover all her care fees while she was at the care home were passed to Miss X.
43. I also note Miss X questioned why the Council had to issue the invoices to Mrs T at the care home. And as a result, she was not aware Mrs T accrued £20,202.79 in care fees, the debt the Council then billed Miss X after Mrs T passed away.
44. There was no evidence an MCA about finances was completed for Mrs T and so there was no evidence to show she lacked capacity to manage her finances. Miss X did not have the power of attorney for Mrs T. I therefore find no fault by the Council for issuing Mrs T with her care fees invoices directly at the time as there were no reasons to have issued the invoices to Miss X instead.
45. However, I find the Council was at fault for not taking proactive steps to recover Mrs T’s care fees until it accrued over a significant period. When Mrs T was not responding or making any payments towards her care fees, I find the Council should have contacted Mrs T and/or Miss X to find out the reasons for non-payment and to have minimised further defaults. The Council should have also been prompted to consider whether it needed to complete an MCA assessment for Mrs T around her capacity to manage her finances. I find the Council allowed the matter to drift until Mrs T passed away and then it issued the final bill to Miss X to recover the outstanding care fees. This was fault. This caused no injustice to Mrs T, but it caused shock to Miss X when she received Mrs T’s accrued care fees.
46. I appreciate Miss X was distressed by the receipt of a large bill after Mrs T passed away. But I have no ground to direct the Council to write off the £20,202.79 outstanding care fees as it is within the Council’s right to charge for the care services provided to service users. Mrs T got the benefit of the care service and as stated earlier, Miss X was aware there might be a charge for the service provided to Mrs T. This was not fault.
47. In conclusion, I find the Council properly calculated and charged Mrs T for her care fees. Mrs T’s invoices were made up of her assessed client contribution towards her care fees and it was not made up of third-party top up fees as alleged by Miss X. Therefore, I find Mrs T’s accrued nursing care fees of £20,202.79 debt remain outstanding.

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Action

48. To remedy the injustice caused by the fault identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Miss X to acknowledge the injustice caused to her by the Council’s failings as identified above. The apology should be in accordance with our guidance, Making an effective apology
• liaise with Miss X and offer her an affordable payment plan option to clear Mrs T’s outstanding care fees debt of £20,202.79 by instalments
• by training or other means, remind relevant staff of the importance of taking proactive steps and to ensure they contact service users, their families and/or representatives in a timely manner to recover accruing care fees.

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

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Decision

50. There was no fault by the Council with how it calculated and charged Mrs T for her nursing care fees.
51. But there was fault by the Council for its slight delay with completing Mrs T’s financial assessment, but this did not cause any injustice to Mrs T. There was also fault by the Council for its failure to take steps to recover Mrs T’s accrued care fees debt in a timely manner and this caused injustice to Miss X. The Council will take action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman