Summary: Mrs X complains the Council was at fault in the way it dealt with Mrs Y’s financial assessments for contributions to her non-residential care causing distress and financial loss. We find no evidence of fault by the Council when carrying out the financial assessments. However, we found fault by the Council as it delayed in responding to Mrs X’s complaint about the matter. The Council accepted it delayed in responding and has already apologised to Mrs X which is suitable action for it to take. So, we have completed our investigation.

The complaint

1. Mrs X complains for her mother Mrs Y there were failings in the way the Council calculated and dealt with Mrs Y’s financial assessments for her contributions towards non-residential care causing distress and financial loss. In particular Mrs X says the Council:
• Has wrongly treated £8000 as notional capital when Mrs Y was repaying a loan to her son for a boiler installed at a house she lived at 15 years ago. And it has unreasonably asked the family for evidence of the debt to Mrs Y’s son. Mrs X says the notional amount adds to Mrs Y’s weekly contribution costs.
• Has wrongly calculated Mrs Y’s contribution to her care costs when payments paused due to the dispute with the Council over the notional capital. Mrs X says the amount owing stayed in Mrs Y’s account artificially inflating the capital in her account which was a large amount. Mrs X says the Council did not allow for this and included it in the weekly payment calculation rather than taking off this money to give an accurate reflection of Mrs Y’s capital. Mrs X says the Council should not have included this amount.
• Has failed to take account of Mrs Y’s costs for incontinence products in its care fee calculation.
• Has failed to deal with the family’s enquiry about the care company’s attendance hours.
• Has taken too long to deal with the matter.

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The Ombudsman’s role and powers

2. 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)
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.

What I found

Charging for social care services

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. 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. It must then give the person a written record of the completed assessment.
8. The Care and Support Statutory Guidance says “In some circumstances a person may be treated as possessing a capital asset even where they do not actually possess it. This is called notional capital. Notional capital may be capital which:
• would be available to the person if they applied for it
• is paid to a third party in respect of the person
• the person has deprived themselves of in order to reduce the amount of charge they have to pay for their care

(Care and Support Statutory Guidance, Annex B, sections 28-29)

Savings and assets income for financial assessments

9. When assessing a person’s finances councils uses the financial limits set out in legislation. For savings and assets between £14,250 and £23,250 a notional savings income for £1 for every £250 (tariff) will be added to the income used to calculate a person’s contribution. Savings and assets under £14,250 are completely disregarded. If a person’s savings and assets are over £23,250 then they will be charged the full cost of their services.

Disability Related Expenditure

10. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. The Care and Support Statutory Guidance sets out a list of examples of such expenditure. It says any reasonable additional costs directly related to a person's disability should be included. What counts as DRE should not be limited to what is necessary for care and support. For example, above average heating costs should be considered

What happened in this case

11. What follows is a brief chronology of key events. It does not include all the information I reviewed during my investigation.
12. Mrs Y started receiving care support at her home arranged by the Council in 2021. The Council carried out a financial assessment and calculated Mrs Y did not need to contribute to her care costs due to the level of her capital.
13. During 2022 Mrs Y was assessed to contribute £123.04 a week towards her care costs. The Council later assessed Mrs Y’s contributions as £167.72 a week.
14. In 2023 the Council carried out a financial reassessment of Mrs Y’s finances following notice her income and capital had increased. The Council says Mrs Y had not told the Council of the increase as required. The Council found Mrs Y had paid her son £8000. Mrs X told the Council Mrs Y was repaying a loan from her son for a boiler bought 15 years ago. The Council asked for evidence of the boiler purchase. Mrs X advised the family could not provide the necessary receipt as Mrs Y had left the property 10 years ago.
15. The Council said it would include the £8000 as notional capital when calculating Mrs Y’s financial assessment. This is because the Council had no evidence the amount of capital paid to Mrs Y’s son was for an item of expenditure that occurred 15 years ago. But if the family were about to provide the proof of purchase via a bank statement or receipt it would reconsider the decision.
16. The Council assessed Mrs Y as having over the upper capital limit of £23,250 so she needed to pay the full cost of her non-residential care services from January 2023.
17. In January 2024 Mrs X complained to the Council about its decision on the notional capital and asked the Council to exclude the £8000. Mrs X also referred to the Council’s calculations for care costs and Mrs Y’s costs for incontinence products she needed.
18. Mrs X says the Council agreed they could put payments on hold while the dispute over the notional capital was on going. Mrs X became concerned the amount in arrears (£11,000) was building up artificially inflating Mrs Y’s account. And considered the Council was not taking the arrears off Mrs Y’s capital when assessing her finances. So, in June 2024 Mrs X paid around £7000 to the Council towards Mrs Y’s care costs as the matter was not resolved.
19. Mrs X and the Council communicated about the hours the care company were attending Mrs Y. The Council sent a breakdown of the number of hours for the invoices which Mrs X accepted.
20. The Council carried out a financial assessment on Mrs Y in June 2024 based on income of £367.44. This included a tariff income of £13, giving a chargeable income of £138.74. The Council assessed Mrs Y’s capital as around £17,000. It confirmed from August 2024 it did not include any tariff income in the financial assessment as Mrs Y’s capital was around £14,000.
21. The Council confirmed it did not include the unpaid care fees in the capital amounts, as these should be accruing in Mrs Y’s bank balance. The Council says the assessed contribution, once under the lower capital limited was based on Mrs Y’s her income such as benefits and pension.
22. The Council sent the adjudication of Mrs X’s complaint on 31 January 2025. It apologised for the delay in responding. It confirmed the Council’s decision to include the money for the boiler as notional capital for the boiler. The Council could reconsider if the family produced receipts or bank statements showing the purchase.

My assessment

23. The Council can assess a person’s income and capital for a financial assessment to see if they should contribute towards their care. During a financial assessment in 2023 the Council became aware Mrs Y paid £8000 to her son. It considered the amount should be treated a notional capital when assessing Mrs Y’s contribution towards her care costs.
24. The Ombudsman is not an appeal body. We consider whether there is fault by an organisation and whether that fault has caused injustice, such as a different outcome. Where there is no fault in the organisation’s decision-making process, we cannot substitute our view for that of the organisation. In this case the documents provided show the Council considered the payment to Mrs Y’s son and the family’s explanations for the purchase and loan repayment. Unfortunately, the family could not provide receipts for the expenditure from 15 years ago. So, the Council considered it was notional capital for the financial assessment as it can do under the regulations.
25. The Council considered the relevant factors when coming to its decision and explained its reasons when communicating its decision to the family. Mrs X disagrees with the Council’s decision, but that does not make it fault. There is no evidence of fault in how the Council came to its decision, so we could not question the merits of that decision.
26. Mrs X complained the Council had taken time to consider her complaint submitted in January 2024. And not resolved until January 2025 when the Council sent the adjudication report and decision. The documents show it took 12 months before Council responded which is a significant amount time. We would normally expect a council to respond to a complaint or review request within 30 working days. The Council has not provided any explanation for the delay. So, I consider it is fault by the Council to have taken 12 months to respond. The Council acknowledged the delay in the adjudication response and apologised to Mrs X. I consider the apology is suitable action for it to take to remedy any injustice caused to Mrs X by the delay in responding. This is because I have not seen any evidence to show Mrs X pursued the delay with the Council during 2024.
27. The Council has confirmed the unpaid care fees accumulating in Mrs Y’s bank account did not affect the financial assessment of her contributions. This is because the assessment was done on Mrs Y’s capital and income, not her bank balance. The Council has provided evidence to support this, so I do not consider there are grounds for us to pursue this part of Mrs X’s complaint any further.
28. The Council responded to Mrs X’s queries about hours the care company attended Mrs Y in June 2024. There is no evidence Mrs X has pursued any further complaints. If the issue remains unresolved Mrs X needs to make a formal complaint to the Council about the matter.
29. The Council says Mrs X has not raised the issue of DRE for incontinence products as a complaint. But in October 2024 the Council confirmed it received an email request from Mrs X to include incontinence pads as DRE. The financial assessment team spoke to a social worker who advised the Council would need to carry out an incontinence assessment on Mrs Y. The Council would then consider if the pads were DRE. This would depend on whether the expense was incurred due to the persons disability, the cost was reasonably incurred and whether there was a cheaper or alternative way to meet the need. If DRE is agreed with the social worker, the financial assessment would be amended to reflect the agreed expenditure.
30. As Mrs X has not raised a complaint to the Council about the issue of incontinence pads as DRE this part of Mrs X’s complaint is premature. It is open to Mrs X to complain to the Council if she disagrees with the outcome of the incontinence assessment and decision on DRE.

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Decision

31. I find fault causing injustice which the Council has already remedied.

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Investigator's decision on behalf of the Ombudsman