Summary: Mrs X complained the Council reneged on a promise to waiver costs incurred for her mother’s care in the period before it decided her financial assessment. We do not find the Council at fault for charging for Mrs X’s mother’s care for this period. This is because its decision is in keeping with the relevant statutory guidance. We did find fault by the Council because it raised Mrs X’s expectations that it would not charge her for her mother’s care costs for this period. This caused Mrs X avoidable distress and uncertainty. The Council agreed to apologise and make Mrs X a symbolic payment.

The complaint

1. Mrs X complained the Council has reneged on a promise to waive costs incurred for her mother’s care in the period before it decided her financial assessment.
2. Mrs X stated the Council’s actions have caused her significant distress, uncertainty and financial loss. She said she would have made different decisions about her mother’s care save for the Council’s promise.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the relevant available evidence and decide what was more likely to have happened.
5. 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

6. I considered evidence provided by Mrs X’s representative and the Council as well as relevant law, policy and guidance.
7. Mrs X’s representative 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

8. The Care Act 2014 (sections 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.
9. Where the person has capital above the upper capital limit of £23,250 the person will need to pay the costs of their care in full. Otherwise, the council will carry out a financial assessment to determine how much they should contribute to the cost of their care.

Deprivation of assets

10. Regulations say a council can treat someone as possessing capital if they decide a person has deprived themselves of it for the purpose of decreasing the amount they may be liable to pay towards the cost of meeting their needs for care and support. The Care and Support Statutory Guidance sets out that where a council considers a person has deliberately deprived themselves of assets to reduce the contribution to their care costs it can treat them as still having the assets. The amount of those assets is called notional capital.
11. The Guidance says there may be many reasons for a person depriving themselves of an asset and the council should fully explore this first. The council must consider:
• If the user of services “must have known that they needed care and support”.
• Did the person have a “reasonable expectation” they may need to pay towards that care and support at the time of deprivation.
• The timing of the disposal of the asset. The guidance tells a council to ask itself if “at the point the capital was disposed of could the person have a reasonable expectation of the need for care and support?”. In addition, “did the person have a reasonable expectation of needing to contribute to the cost of their eligible needs?” at that time.

Mental Capacity

12. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act 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' is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests. There are two types of LPA: property and finance and health and welfare.

What happened

13. What follows is a chronology of the key events relevant to my consideration of the complaint. It is not intended to show everything that happened.
14. Mrs X’s mother (Mrs Y) had vascular dementia and mobility issues. Mrs X had Lasting Power of Attorney for Mrs Y.
15. In late 2019 Mrs Y moved to Mrs X’s home. Mrs X became Mrs Y’s full-time carer.
16. In February 2020 the Council completed a care and needs assessment for Mrs Y. The assessment found Mrs Y would need to pay towards the cost of any care because she had capital above the upper limit.
17. In April 2021 Mrs Y was admitted to a care home. She had to self-fund her care.
18. In November 2021 Mrs Y sold her home. The proceeds of the sale were used to fund adaptations to Mrs X’s home to enable Mrs Y to live there and for short term care placements. Some of the funds were also used to settle Mrs X’s mortgage.
19. In July 2022 Mrs Y moved back in with Mrs X.
20. In August 2022 the Council reported Mrs X to the Office of the Public Guardian (OPG) regarding concerns about the use of the funds from the sale of Mrs Y’s home and use of her pension income.
21. In July 2023 Mrs Y was placed in a care home under discharge to assess funding, following a hospital stay.
22. In August Mrs X contacted the Council to discuss the ongoing care of Mrs Y and the financial implications of her care arrangements.
23. On 23 August the Council wrote to Mrs Y. It said it would need time to consider the financial complexities of Mrs X’s case, and it would need to make enquiries to do so. For this reason it said it would cover the costs of Mrs Y’s care until it established her financial situation. It said it would not seek to backdate charges for Mrs Y’s care during the period it undertook this work.
24. In September Mrs Y moved to a new care home.
25. In April 2024 the Council wrote to Mrs X explaining it had decided that deprivation of assets had occurred in Mrs Y’s case. It said the liability for Mrs Y’s care costs fell to Mrs X as the beneficiary of actions taken for and on behalf of Mrs Y.
26. The Council’s letter explained why it had decided deprivation of assets had occurred. It said:
• Mrs X has Lasting Power of Attorney for Mrs Y.
• it believes that funds were transferred from Mrs Y’s account for Mrs X’s benefit in the knowledge that she was liable for her care costs which should have been funded from her assets.
• Mrs X was provided with information explaining care charges and costs and so she would have been aware that such transfers could result in a person depriving themselves of assets to reduce the amount they pay towards their care.
• Mrs X made enquiries of the Council about the implications of Mrs Y’s care costs and on some occasions care for Mrs Y was declined following information provided by it.

It said Mrs Y was a self-funder and the amount of her care costs to date was just under £25,000. It said Mrs Y must pay for her care from August 2023, despite its promise not to charge her backdated care costs.

27. The Council’s letter also explained that Mrs Y’s care costs had accrued at a slower rate because she was paying the Council’s lower rate for her care. It also said that if Mrs X settled Mrs Y’s outstanding debt it would allow her to continue paying the Council’s lower rate.
28. On 26 April Mrs X wrote to the Council expressing surprise at the Council’s decision to backdate care charges for Mrs Y. In the letter Mrs X explained she cannot meet Mrs Y’s care needs at home, but she cannot afford to pay for her care costs. Mrs X outlined several possible ways forward and asked the Council to consider them.
29. In June Mrs X appointed a representative to make a formal complaint to the Council. She complained about the Council’s decision to renege on its promise not to charge her backdated fees for Mrs Y’s care.
30. On 14 June the Council wrote to Mrs X. It said it could not accept her proposed ways forward. It reiterated that if Mrs X did not agree to pay the backdate care charges it would have to start charging Mrs Y the full rate for the cost of her care.
31. On 20 June Mrs X told the Council she would pay for Mrs Y’s care going forward. She said she would wait until her complaint was considered before deciding whether to agree to pay the backdated charges.
32. In late June Mrs Y moved to a new care home. She was charged the Council’s lower rate for the cost of her care.
33. In July the Council wrote to Mrs X’s representative explaining that as Mrs Y has agreed to pay the backdated charges, it considered the matters in the complaint to be settled. Mrs X disputes she agreed to pay back the backdated charges.
34. Throughout August and September the Council and Mrs X were in discussions about how she would repay the outstanding debt for Mrs Y’s care. One of the options was for Mrs X to put a charge on her home and the Council sent her a debt spreading agreement.
35. On 24 October Mrs X said she could not agree to putting a charge on her home. She said the agreement sent by the Council said the reason the debt accrued was because of a misuse of funds, but this is incorrect. Mrs X said the debt accrued because the Council reneged on is promise not to charge backdated fees.
36. In November Mrs X’s representative wrote to the Council asking it to complete its consideration of her complaint.
37. In December the Council wrote to Mrs X explaining she could either accept the offer to repay the debt and receive the reduced rate for Mrs Y’s ongoing care or she could refuse the offer in which case the Council would charge Mrs Y the full rate from the start of her current placement.
38. In January 2025 Mrs X’s representative wrote a new complaint to the Council. Mrs X’s complained about the Council’s decision to renegade on its earlier decision not to charge her backdated fees for Mrs Y’s care. She also complained the Council was pressurising her into accepting there is a debt and is threatening her with higher care charges if she does not do so.
39. In late January Mrs Y died.
40. In February the Council replied to Mrs X’s complaint. It said:
• information came to light during its consideration of Mrs Y’s case which resulted in the Council concluding Mrs Y should pay for her full care costs including the period where it had previously said it would not charge her.
• Mrs X agreed to repay the outstanding debt in June 2024 but later changed her mind. For this reason its offer to allow Mrs Y to pay its lower council rate for her care is not valid as this was conditional on Mrs X repaying the debt.
• it refuted it was pressuring Mrs X into accepting there was a debt by offering her access to the Council’s rate for Mrs Y’s care.
41. Mrs X remained unhappy and appointed a solicitor who made a complaint to the Ombudsman on her behalf. Her grounds of complaint remained the same.
42. We made enquiries of the Council and it told us:
• Mrs X was made aware in 2021 and subsequently that it had assessed Mrs Y as being a self-funder.
• it offered to cover Mrs Y’s care costs while it assessed her case because it had concerns that Mrs X may remove her from her care home and this would not have been in Mrs Y’s best interests at the time.
• between August 2023 and April 2024 it had to complete care assessments and reviews as well as other investigations into deprivation of assets and obtain legal advice before it could decide on the charges for Mrs Y’s care.
• it decided to renege on its promise not to charge Mrs Y care costs while it completed a full financial assessment because Mrs X should not be provided with benefits, she is not legally entitled to. It also said Mrs Y was not caused any detriment by its decision as if it had not taken the action she may have been put in a situation that was not in her best interest. It also noted it had offered some recompense via its offer to allow Mrs Y access to the Council’s rate for her care.
• Mrs Y was charged £36,985 for her care after its decision of April 2024. This care would likely have cost around £50,000-£55,000 if she had paid the self-funder rate instead of the local authority rate.

Finding

Deprivation of Assets decision

43. The Ombudsman is not an appeal body. Our role is to consider the process followed by the Council, whether it followed the guidance and whether there was fault in the way it reached its decision. If it considered the information properly, we cannot find fault just because a person disagrees with the decision.
44. The Council was entitled to investigate whether there was deprivation of assets in this case. It considered the relevant information, and it explained its reasons in a decision letter. This was a decision the Council was entitled to take and as there was no fault in how it did so, I cannot question it.

Financial assessment

45. The Council took from August 2023 to April 2024 to decide the financial assessment for Mrs Y. Although there are no statutory timescales for completing financial assessments, the Ombudsman would expect the Council to complete them within four weeks.
46. While I appreciate the Council had to gather information required to make a decision, a delay of 10 months in completing Mrs Y’s financial assessment is fault.
47. In its letter of 23 August 2023 the Council told Mrs X it would cover the care costs for Mrs Y while it decided her financial assessment. The letter is clear the Council will not seek to backdate the care costs. For this reason Mrs X had the expectation that Mrs Y would not incur care costs for this period.
48. In April 2024 the Council decided Mrs Y’s financial assessment. It said deprivation of assets had occurred and so it was rescinding its promise to cover Mrs Y’s care costs during the period it decided her financial assessment. The Council’s decision in keeping with The Care and Support Statutory Guidance which sets out that when a council considers a person has deliberately deprived themselves of assets to reduce the contribution to their care costs it can treat them as still having the assets. The Council’s decision to charge Mrs X is compliant with the relevant guidance and so I cannot question the merits of its decision to rescind its promise not to charge for care providing while the financial assessment was decided.
49. Mrs X says she would have cared for Mrs Y at home save for the Council’s promise not to backdate care costs. However I note in Mrs X’s letter of 26 April 2024 she explained that she could not meet Mrs Y’s care needs at home. Furthermore concerns about Mrs Y’s care needs being met at home were, in part, one of the reasons for the Council promising not to charge Mrs Y care costs while it completed the financial assessment. I therefore consider that is more likely than not Mrs X would not have been able to care for Mrs Y at home or that she would have required support to do so, which would have incurred charges.
50. The Council stated that information came to light during its financial assessment which led to it deciding there was deprivation of assets in this case and rescinding its offer not to backdate charges. However a previous financial assessment in February 2020 found Mrs Y would need to self-fund her care and she also self-fund her care home placement in 2021 and 2022. It was also known prior to commencing the August 2023 financial assessment that Mrs X had received funds from the sale of Mrs Y’s home. I am therefore unsure why the Council made the commitment not to charge backdated care fees given it was already in possession of this information. While I note its decision was also informed by concerns about Mrs Y’s care needs being suitably meet if she was taken out of her care home, it could have addressed these concerns via the best interest framework.
51. For the above reasons I consider the Council had information in August 2023 to have decided it was more likely than not that Mrs Y would need to pay for her care and so it should not have promised not to backdate Mrs Y’s care costs. This is fault. As a result the Council avoidably led Mrs X to believe she would not need to pay care cost while the financial assessment was completed. This is injustice.

Council rate care fees

52. The Council has offered to apply its lower council rate to Mrs Y’s care. In its reply to our enquiries it explained this has reduced Mrs Y’s care costs by around £15,000 -£20,000. This is a significant saving.
53. The Council applied its lower rate to Mrs X’s care costs for the period April 2024 until her death. Her care costs for this period were £36,985. If the same period had been charged at the private contract rate the cost would have been around £52,500. Therefore Mrs Y’s care cost around £15,000 less because of paying the Council’s lower rate. The financial benefits of paying the lower council rate for Mrs Y’s care equate to roughly two thirds of the amount the Council charging is for the backdated period and so I consider this mitigates much of the financial disadvantage Mrs X is claiming because of the Council rescinding its promise not to charge her backdated fees. I also note care provided during the backdated period was also charged at the Council’s lower rate and so is cheaper than it if it had been charged at the private contact rate, thereby providing additional savings.
54. Mrs X states the Council has tried to bully her into accepting she should pay the backdated charges for Mrs Y’s care by making the offer of its lower council rate conditional on her agreeing to repay this amount. I do not agree. The Council has made Mrs X an offer and it was up to her weigh up the benefits of accepting or refusing the offer. I have seen no evidence to suggest the Council put Mrs X under any pressure to accept the offer.

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Agreed Action

55. Within one month of my final decision the Council will:
• Apologise to Mrs X for the identified fault. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mrs X £1000 in recognition of the distress and avoidable uncertainty caused by the Council rescinding its promise not to backdate Mrs Y’s care costs for the period August 2023 to April 2024. The Council can deduct this amount from the amount outstanding for Mrs Y’s care.
56. The Council should provide us with evidence it has complied with the above actions.

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Decision

57. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman