Summary: Mrs B complained that the Council failed to properly communicate with her about her mother’s care home fees, delayed issuing an invoice and unreasonably reported her to the Office of the Public Guardian. We find no fault in the way the Council told Mrs B about the amount she would need to pay, or its decision to report its concerns to the Office of the Public Guardian. But it delayed issuing an invoice, which caused Mrs B unnecessary distress. The Council has agreed to apologise to Mrs B and make service improvements.

The complaint

1. Mrs B complained that the Council failed to properly communicate with her about her mother’s care home fees and then delayed issuing an invoice. She says the Council then unreasonably reported her to the Office of the Public Guardian and started a safeguarding investigation into potential financial abuse.
2. Mrs B says the Council’s actions have caused her significant distress and have affected her mental health. She is very concerned about how she and her mother will be affected financially as her mother no longer has enough money to pay the full outstanding amount. She says that as a result of the Council speaking to her family about the allegations of financial abuse, she has faced public humiliation.

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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. 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 have limited resources and must investigate complaints in a proportionate manner, focusing on general themes and issues, rather than providing a response to every individual issue raised in a complaint.
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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How I considered this complaint

7. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
8. Mrs B and the Council have 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

Relevant law, policy 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 and councils should have regard to the Care and Support Statutory Guidance.
10. 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.

Top-up payment

11. If a person chooses a care home that costs more than a council is willing to pay, and the council can show that it can meet the person’s needs in a less expensive home, it can still arrange a place at the home if:

• A third party agrees to pay the “top-up” fee; or
• The resident agrees to enter a deferred payment scheme to cover the top-up fee themselves.

Safeguarding

12. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (Care Act 2014, section 42)

Lasting Power of Attorney

13. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
14. There are two types of LPA - Property and Finance LPA and Health and Welfare LPA. Property and Finance LPA gives the attorney the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.

Office of the Public Guardian

The Office of the Public Guardian (OPG) has the power to investigate complaints and concerns about the way an attorney is carrying out their duties. If it finds there has been financial abuse, it may apply to the court for a deputy to be suspended, discharged or replaced, or for a power of attorney to be revoked. If it thinks a crime has been committed, it will report it to the Police.

Background and key events

15. Mrs B is complaining on behalf of her mother, Ms X, who has dementia. Mrs B holds financial power of attorney for Ms X, which gives her the legal authority to manage her mother's finances.
16. In August 2023, it was decided that Ms X needed residential care. The care home Ms X preferred was more expensive than the amount the Council would pay, so her family agreed to pay a "top up fee" of £375.84 per week.
17. The Council carried out a financial assessment and sent Mrs B a letter explaining that Ms X needed to contribute £236.03 each week towards the care home fees. Mrs B says she did not receive this letter.
18. In January 2024, the Council sent an invoice to Mrs B for £4,417.13, which covered the weekly contributions from August 2023 to January 2024. Mrs B immediately contacted the Council, stating she did not know Ms X was supposed to contribute to the care home fees.
19. A meeting was arranged to discuss the outstanding debt, during which the Council says Mrs B spoke about her financial difficulties and said she was unable to pay the invoice. The Council expressed concern about Mrs B’s management of Ms X’s finances, noting that at the time of the financial assessment in August 2023, Ms X had sufficient income to pay the weekly contribution, as well as savings of around £13,000. The Council says that during the meeting it reminded Mrs B that she could not use Ms X’s funds to pay debts she owed.
20. Following the meeting, the Council initiated a safeguarding investigation to consider whether Ms X was a victim of financial abuse, which involved talking to other family members. It also raised its concerns with the OPG.
21. Mrs B then made a formal complaint, explaining that she had not received the letter the Council had sent about Ms X needing to contribute to the care home fees. She provided an email she received before Ms X moved into the care home, which stated that the Council would pay £724.16 each week directly to the care home, while the family would cover the remaining £375.84. Mrs B stated that she had never said that she had used Ms X’s money to pay her own debts.
22. In the Council’s response, it explained that Ms X’s contribution was based on her financial situation and was separate from the third party top up fee, and it said that it had already provided evidence that it had sent the letter about the requirement to contribute. The Council explained that the delay in sending the invoice was due to the need to set up a new contract with the care home.
23. The OPG is currently investigating the potential misuse of Ms X’s funds by Mrs B. The Council and Mrs B have responded to the OPG's requests for further information, but the investigation has not yet been concluded.

Analysis

Financial assessment

24. Mrs B says that she has problems receiving mail at her address and she did not receive the letter setting out how much Ms X needed to contribute to her care home fees. The Council’s records show that the letter was sent by both post and email, and that it also verbally explained to Mrs B that a weekly contribution would need to be paid to the Council from Ms X’s pension. I am satisfied that the Council took appropriate action to ensure Mrs B knew that Ms X needed to contribute to her care home fees.
25. Mrs B says that the misunderstanding was caused by the Council failing to set out how much each party needed to contribute in an email it sent in August 2023. This email was sent to the care home to explain how much it would receive directly from the Council and how much it would receive directly from the family. The care home did not need to know how much Ms X needed to pay the Council, and so this was not included in the email. I have found no evidence of fault by the Council here.
26. The Council took around five months to send out the first invoice to Mrs B. This delay was fault. While I do not consider the Council failed to properly inform Mrs B about the required contributions, the Council missed the opportunity to reinforce the requirement for payment by not sending the invoice in a timely manner.
27. Mrs B says that Ms X no longer has sufficient funds to pay the full amount outstanding. The reason for this remains unclear. However, Mrs B says she froze Ms X’s account in January 2024, so there should be sufficient funds available to cover any contributions due since that time.
28. I find no fault in the Council’s decision to pursue the outstanding debt. However, the delay in sending out the invoice contributed to the distress Mrs B experienced when she received it in January 2024. I consider the Council should apologise for this.

Meeting

29. Mrs B considers the Council should have recorded the meeting held in July 2024 so that there could be no dispute over what was said. While there is no requirement for the Council to record meetings, it is good practice to take minutes. However, I do not consider the outcome would have been different even if minutes had been taken. The Council still would have had concerns about how Mrs B was managing Ms X’s finances because she was not paying her contribution to the care home fees. The Council believed Ms X could be a victim of financial abuse and it therefore had a duty to investigate. I have found no fault in the way the Council decided to report its concerns to the OPG.

Safeguarding

30. As part of the Council’s safeguarding investigation, it decided it was necessary to speak to Ms X and some members of her family. Councils can share information about individuals and their circumstances if it is necessary and proportionate to prevent harm, ensure welfare, or identify risk, even without explicit consent. I have not seen any evidence which shows that the Council shared any information which was not necessary in order to carry out its investigation.

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Action

31. The Council has agreed to take the following action within four weeks of my final decision:
• Apologise to Mrs B for the delay in sending out the invoice. 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 when making the apology.
32. The Council has also agreed to take the following action within eight weeks of my final decision:
• Review its procedures to ensure it is able to issue invoices within a reasonable timeframe, and that it provides clear updates when delays are unavoidable.
33. The Council should provide us with evidence it has complied with the above actions.

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Decision

34. I have completed my investigation and uphold Mrs B’s complaint. There was fault by the Council which caused injustice to Mrs B. The action the Council has agreed to take is sufficient to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman