Summary: There was no fault by the Council. The Council gave the correct advice on care funding on the information it received from the family before the care assessment was carried out and then carried out a financial assessment without fault. There was minor delay in carrying out the financial assessment, but some of this was while waiting for information from the family.

The complaint

1. The complainant, Mrs X, complains on behalf of her mother, Mrs M. Mrs X complains her family were wrongly advised they would need to self fund costs for their mothers care at home as a private pension was treated as capital. This meant they withdrew money from the pension they did not need to do. Mrs X also complains the Council delayed carrying out a financial assessment.

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The Ombudsman’s role and powers

2. 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)
3. 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(1), as amended)

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How I considered this complaint

4. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
5. Mrs 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

6. 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)
7. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
8. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
9. Section 8.22 of the Care Act guidance says that in some circumstances, a local authority may choose to treat a person as if a financial assessment had been carried out. In order to do so, the local authority must be satisfied on the basis of evidence provided by the person that they can afford, and will continue to be able to afford, any charges due. This is known as a ‘light-touch’ financial assessment. When charging for non-residential care, a person’s capital should not fall below income support. The upper threshold remains £23,250, the lower threshold £14,250. Capital that falls between the two figures should be assessed as notional e.g. £1 per £250 per week.

Key facts

10. Mrs M was in hospital.
11. In October 2024 the social worker advised Mrs X to contact the finance team to get advice on whether Mrs M would need to self-fund her care. Mrs X was sent the Council’s information, which listed the types of capital included in the financial assessment as money, savings, stocks and shares and bonds. The leaflet said that income would include occupational pensions.
12. The social worker referred Mrs M for a financial assessment on 1 November. The finance team closed the referral as Mrs M was not medically optimised without an expected discharge date.
13. A care and support assessment was completed on 18 November 2024. This says ‘Mrs M has savings over £23,250 and more than £40,000 so she is going to self-fund her care’. The report referred to the family arranging a live in carer themselves.
14. A new referral for a financial assessment was made on 21 November 2024. The Council has said that it had a 28 day turn around time to complete the financial assessment.
15. Notes of a telephone call on 18 December 2024 say ‘Mrs X advised the Council there has been miscommunication as Mrs M has not got savings above £23,250. There is a private pension worth over £40,000 but it was paid monthly to Mr M before he died and transferred to Mrs M. After the family were told by the Council that Mrs M would be expected to pay the full cost of her care, they had taken out some money from the pension to pay for it. The Council officer told Mrs X to send in details of the pension as it should be treated as monthly income not capital’.
16. Mrs X withdrew £6100 from the pension fund on 24 December 2024. This was after she was aware the pension fund would not be treated as capital. On 3 January 2025 a further £5000 was withdrawn from the pension.
17. The Council said it received the final bank statements from the family on 9 January 2025. On 16 January 2025 the Council sent the financial assessment to Mrs X. This said that Mrs M would need to pay the full cost non residential capped rated of £498 per week towards her non-residential care based on her current income and savings.
18. The Council emailed Mrs X on 16 January. The email said ‘firstly, I can confirm the pension pot value is not treated as capital in the financial assessment and Mrs M is not assessed as Self-Funding. Secondly, our charging policy says the following on how we include the value of this pension pot in our financial assessment calculation:
• Pension Flexibilities. From 6th April 2015, several changes were introduced to non-state pensions, which allow individuals to access their pension savings from age 55. These are generally known as pension flexibilities and allow an individual to choose what they want to do with their pension pot. If they want to, they can draw out all the pension pot, purchase an annuity or draw down lump sums or regular amounts or do nothing and leave the pension pot untouched.
• Effects on Pension Credit qualifying age: While a person’s pension pot is held by the pension provider, notional income should be assumed from it. The amount of notional income to be considered is the maximum amount of income that may be withdrawn from the pension pot. Where a person chooses to take ad-hoc withdrawals or take the whole sum; then the money falls to be treated as capital. Where a person chooses to draw down amounts on a regular basis and/or purchases an annuity with it, then the money falls to be treated as income and considered as such. Where the pension pot is held by the provider and notional income is assumed, but the person also draws down income from their pension pot, the Council use the whole notional income amount even if the person decides to take a lesser amount’.

‘From January 2025, when Mrs M starts drawing £5,000 per month from the pension we will treat this as income in her financial assessment. If she were not drawing down from the pension, then we would include an assumed notional income instead. This notional capital used would be the maximum amount she is able to withdraw, which we assume is the £5K already chosen? You would need to seek independent financial advice on whether you would want to continue drawing £5,000 each month, or stop these payments and keep the pension pot as is. I have completed a pre assessment based on Mrs M’s current income and financial situation. Please find attached letter for reference. As Mrs M’s income is high, she is assessed as a full cost service user. However, our current policy in these cases is that we apply a cap to the amount we can charge a service user each week, for Non-Residential Care (as opposed to people who have high levels of savings; where they pay the full cost of the care they receive, including admin fees). The capped amount for this financial year is £498 per week. Mrs M would pay no more than this amount for care, if she were to receive a service contracted via the Council. Finally, if you have not already done so, now I have completed the financial assessment and confirm Mrs M is eligible to support from the Council for care; she will need to have a social care practitioner allocated to her, to arrange for services to be set up. Please call to arrange this’.

19. The Council said ‘the notional income amount was discussed further with Mrs X on 29 January 2025 and it was confirmed that if they started to withdraw a lower amount, that is the amount we would include in the financial assessment once evidence was provided’.

My analysis

20. Mrs X complains the Council delayed carrying out the financial assessment. The referral was made on 21 November and the Council aims to carry out the assessment in 28 days, which would have been 19 December. Given the Christmas period and that the Council did not receive the final bank statements till 9 January, I find no evidence of significant delay.
21. Clearly both the Council and Mrs X agree the pension amount should not be treated as capital. Mrs M received care from live in carers from December 2024, this went down to 4 care visits a day in February 2025 and the carers were stopped in March 2025. So, there is no on-going complaint about the care costs.
22. Mrs X said the period that she disputes the costs is from the start of December 2024 until the middle of January 2025. Mrs X wants the full costs for this period refunded as she says they would not have taken the lump sums from the pension if they had known they did not need to self fund the care.
23. The information I have says that when Mrs X asked about a financial assessment, the social worker correctly asked her to contact the financial assessment team and referred Mrs M for a financial assessment. At this point the care and support assessment had not been carried out so the financial assessment team closed the referral as Mrs M did not have a hospital discharge date.
24. The care and support plan assessment was carried out on 18 November and a new referral was made for a financial assessment. I can see from the notes of the care assessment the social worker had been told by the family that Mrs M had savings of over £40,000. So, a light touch assessment was carried out as the notes record the family intended to arrange a live in carer.
25. I can find no fault in the Council’s actions up to this point. The Council were told that Mrs M had savings of over £40,000 so correctly told the family that Mrs M would need to self-fund her care. I can see no evidence the Council were told that this money was in a pension rather than savings and so there is no evidence the family were given the wrong advice.
26. After Mrs M was discharged, Mrs X made the Council aware on 18 December 2024 that Mrs M’s money was from a pension rather than savings. The Council asked Mrs X to send in details of the pension as it should be treated as income not capital. The Council officer gave the correct information at this point and so I find no evidence of fault.
27. At the financial assessment, the Council explained the money already withdrawn from the pension was counted as income in the assessment. The Council explained on 29 January that if the family chose not to withdraw further funds, then there would be no income to assess from the pension. The Council officer gave the correct information at this point and so I find no evidence of fault.
28. Mrs X’s complaint is that if she had been aware from the start the pension was treated as income not capital she may have made different decisions. This could have included not taking money from the pension. I understand her view, but I cannot see any evidence the Council was aware the money was from a pension until 18 December. It then carried out the financial assessment, with all the correct information. The Council gave the correct advice on the information it was given by the family at all times. So, I can find no fault in the Council’s actions and cannot ask it to repay the money the family spent on care before the financial assessment was complete. The leaflet given to Mrs X in October 2024 did say that occupational pensions were treated as income. It is unfortunate that the family took out money from the pension before the financial assessment was complete, but when they did this they were aware that the pension should be treated as income and not capital.

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Decision

29. I have completed my investigation and this complaint is not upheld. I find no fault.

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Investigator's decision on behalf of the Ombudsman