Summary: Mr Y complains about the outcome of the Council’s financial assessment because it did not disregard a large sum of money gifted to him. The Council decided to charge Mr Y for the full cost of his social care for an eight-week period and until the date from which the Council calculated Mr Y’s capital would fall below the relevant charging threshold. There is no procedural fault in how the Council assessed Mr Y’s finances and considered its discretionary powers, and we do not uphold the complaint.

The complaint

1. Mr Y complains the Council has made significant charges for care and support costs as his bank balance was, for a short period, more than the capital threshold. Mr Y says this was because his parents had transferred money so he could purchase items and improve his home.
2. Mr Y complains the Council lacked empathy in its dealings with him and has not used discretion to consider his individual circumstances. Mr Y says the Council’s decision has created a significant financial burden and caused undue stress.

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The Ombudsman’s role and powers

3. 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)
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(1), as amended)

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How I considered this complaint

5. I considered evidence provided by Mr Y and the Council as well as relevant law, policy and guidance.
6. Mr Y 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 adult social care

7. Councils have 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. Councils can 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.
8. 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. Councils must not charge more than the cost it incurs to meet a person’s assessed eligible needs.
9. The capital limits, specified in regulations issued under the Care Act 2014, set the levels of capital (excluding any capital that has been disregarded) that a person can have while qualifying for financial support from their local authority. For people receiving care other than as a permanent resident in a care home, local authorities have discretion to set higher capital limits if they wish.
10. A person with assets above the upper capital limit is responsible for the full cost of their care. A person with assets between the capital limits will pay what they can afford from their income, plus a means-tested contribution from their assets (calculated as £1 per week for every £250 of capital between the capital limits). A person with assets below the lower capital limit will pay only what they can afford from their income.

What happened

11. Mr Y has eligible care and support needs and receives support at home to meet his assessed needs. The Council’s records show that in May 2022 Mr Y was assessed as a nil charge. This meant he did not have to contribute to the cost of his care because his capital was below the relevant threshold.
12. The Council’s case notes record a telephone call between a Council officer and Mr Y’s mother on 4 July 2024. I will refer to Mr Y’s mother as Mrs W. The notes say, “[Mr Y] has recently inherited some money and his capital is now £41,608.38 cost of care is £2,229.50 per week so capital should fall below £23,250 on 25 August 2024. Actual cost payer from 1 July 2024 to 25 August 2024, and he will be a nil payer again from 26 August 2024. I will monitor and check capital has fallen below in a couple of months time”.
13. The following month, Mrs W called the Council again to discuss Mr Y’s finances. She said he had received two invoices totalling £18,000 which was the full cost of his care for the eight weeks between 1 July and 25 August 2024. Mrs W acknowledged she had gifted Mr Y money inherited from a family member “but she now regrets doing this as it took [Mr Y] over the £23,250 threshold”.
14. Mrs W went on to say the money was “intended” as a loan and to be paid back to her. The Council recorded that it needed to consider whether Mrs W had asked for the money back with the intention of reducing Mr Y’s capital to avoid charges.
15. The Council agreed to consider any evidence Mr Y and Mrs W wanted to present to support their claim that the money was a loan and should be disregarded.
16. On 11 October 2024 the Council completed a home visit to discuss the information needed to consider the case further. Mrs W presented a spreadsheet to show the things she had paid for and acknowledged her intention was to ask Mr Y to repay the money. Mrs W agreed to send a copy of the completed spreadsheet and any supporting evidence, such as proof of expenditure, to the Council in the following week.
17. Two weeks later the Council noted it had not received any further information from Mr Y or Mrs W. Despite this, the Council agreed to place the unpaid invoices on a temporary hold of two months to allow Mr Y and Mrs W more time to provide evidence and for the Council to make a decision.
18. On 13 November 2024 the Council considered information it received from Mr Y showing his expenditure. The Council considered whether to exercise its discretion to disregard the capital. It decided that “the capital at point of assessment is correct as this was the amount in his account”. It decided not to disregard the capital. The Council lifted the temporary hold on the invoices to begin the process of recovery from 3 December.
19. Mr Y complained to the Council. He said the Council was wrong to consider all his capital when completing the financial assessment in July 2024 because it was “a temporary bank balance”. The Council responded to say that, in its view, the circumstances presented by Mr Y were not examples of capital that the Council must disregard in accordance with the charging regulations.
20. Dissatisfied with the response, Mr Y approached the Ombudsman.

Was there fault in the Council’s actions causing injustice to Mr Y?

21. Under the Care and Support (Charging and Assessment of Resources) Regulations 2014, certain forms of capital must be disregarded when a local authority assesses what a person can afford to contribute toward the cost of their care. These mandatory disregards include, but are not limited to, the following.
• The value of a property that continues to be occupied by a spouse, civil partner, partner, or certain relatives who are aged 60+ or incapacitated.
• Certain types of compensation payments, such as those held in personal injury trusts, the Court of Protection, or administered by deputies.
• Capital held in trust where the person cannot access the funds.
• The surrender value of life insurance policies.
• Certain pre-paid funeral plans.
• Payments made from specific sources such as the Macfarlane Trust, Eileen Trust, or Skipton Fund, which compensate for contaminated blood products.
22. Councils also have wide discretionary powers under the Care and Support Statutory Guidance (Annex B) to disregard other forms of capital in exceptional circumstances. This may include circumstances when an adult has a short-term increase in their bank balance that is not intended for their own use. This is because the funds may not be genuinely available to the person if they have no control or benefit from them. Councils should consider on a case-by-case basis whether it is appropriate to exercise discretion to make a disregard.
23. In Mr Y’s case, I am satisfied the Council properly considered whether to apply a discretionary disregard. It had several conversations both with Mr Y and his mother. The Council gave Mr Y and Mrs W an opportunity to present their case, and it placed the invoices on hold during this period. I note that Mrs W presented evidence of expenditure including a holiday, home improvements, furniture and a new wheelchair. The Council decided that there was no evidence of a loan, as Mrs W had suggested.
24. Furthermore, there is no fault in how the Council communicated with Mr Y or Mrs W during the period in question. It had several telephone calls with Mrs W and agreed to complete a home visit to discuss the case in person. When doing so, the Council agreed to place recovery action on hold. While Mr Y was frustrated that the Council had not responded to some hypothetical scenarios he presented, I do not find the Council at fault because those scenarios were not relevant.
25. Our role is not to ask whether a council could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
26. I have considered the steps the Council took to consider Mr Y’s case, and the information it took account of when deciding to charge Mr Y for the full cost of his care between July and August 2024. There is no fault in how the Council made its decision, therefore I cannot question whether that decision was right or wrong.
27. Although we have not found fault in the Council’s financial assessment, or its consideration of general discretion, the Council should consider Mr Y’s ability to repay the outstanding invoices. Due to the significant monies owed, the Council may wish to discuss a repayment plan with Mr Y if it has not done so already.

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Decision

28. I find no fault in the complaint made by Mr Y, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman