Summary: Mrs X complains the Council left her mother, Mrs Y, in residential care for too long, resulting in her paying too much for her care. The length of time Mrs Y spent in residential care was due to COVID-19, not fault by the Council. However, the Council failed to assess Mrs Y’s finances properly. It therefore needs to reconsider its decision on the extent to which she deprived herself of capital.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council left her mother in residential care for too long, resulting in her paying too much for her care.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, sections 30(1B) and 34H(i), as amended)
4. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

5. I have:
• considered the complaint and the documents provided by Mrs X;
• discussed the complaint with Mrs X;
• considered the comments and documents the Council has provided in response to our enquiries;
• considered the Ombudsman’s guidance on remedies; and
• shared a draft of this statement with Mrs X and the Council, and invited comments for me to consider before making my final decision.

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What I found

6. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 (the Regulations), and the Care and Support Statutory Guidance 2014 (the Guidance). When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the cost of their residential care.
7. The rules state that people who have over the upper capital limit (£23,250) have to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
8. The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of their care.
9. The Guidance says:
• “When undertaking or reviewing a financial assessment a local authority may identify circumstances that suggest that a person may have deliberately deprived themselves of assets in order to reduce the level of the contribution towards the cost of their care. In such circumstances, the local authority should have regard to this guidance. Clearly, local authorities should treat this issue with sensitivity and care.” (Annex E, paragraph 3)
• “People should be treated with dignity and respect and be able to spend the money they have saved as they wish – it is their money after all. Whilst the Care Act 2014 represents an important step forward in redefining the partnership between the state and the individual, it is important that people pay the contribution to their care costs that they are responsible for. This is important to the overall affordability of the care and support system. A local authority should therefore ensure that people are not rewarded for trying to avoid paying their assessed contribution.” (Annex E, paragraph 4)
• “But deprivation should not be automatically assumed, there may be valid reasons why someone no longer has an asset and a local authority should ensure it fully explores this first. However, the overall principle should be that when a person has tried to deprive themselves of assets, this should not affect the amount of local authority support they receive.” (Annex E, paragraph 5)
• “There may be many reasons for a person depriving themselves of an asset. A local authority should therefore consider the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred:”
1. “whether avoiding the care and support charge was a significant motivation in the timing of the disposal of the asset; at the point the capital was disposed of could the person have a reasonable expectation of the need for care and support?”
2. “did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?” (Annex E, paragraph 11)
• “For example, it would be unreasonable to decide that a person had disposed of an asset in order to reduce the level of charges for their care and support needs if at the time the disposal took place they were fit and healthy and could not have foreseen the need for care and support.” (Annex E, paragraph 12)
• “If a local authority decides that a person has deliberately deprived themselves of assets in order to avoid or reduce a charge for care and support, they will first need to decide whether to treat that person as still having the asset for the purposes of the financial assessment and charge them accordingly.” (Annex E, paragraph 18)
• “As a first step, a local authority should seek to charge the person as if the deprivation had not occurred. This means assuming they still own the asset and treating it as notional capital or notional income.” (Annex E, paragraph 19)
• “The local authority must leave the person with a minimum amount of income. This is known as the Personal Expenses Allowance (PEA) and the amount is set out in regulations and updates sent via a local authority circular. Anything above this may be taken into account in determining charges.” (Annex E, paragraph 43)
• “any additional amounts the person may need so they can maintain their home during their temporary stay so that it is in a fit condition for them to return to must be disregarded. Such expenses may include, but are not limited to, ground rent, service charges, water rates or insurance premiums”. (Annex F, paragraph 12)

What happened

10. Mrs Y, has dementia and lacks the capacity to make some decisions for herself, including decisions about her care needs and her finances. Although she lived in her own home, Mrs Y was on the waiting list to move to an extra care housing scheme.
11. In February 2020, Mrs Y was in hospital having fractured her back in a fall. When she left hospital on 25 February, she went to stay in a care home, as she could not have coped with the stairs in her own home. The Council arranged the placement for four weeks, so it could assess Mrs Y’s long-term needs and agree how to meet them. Mrs Y paid the full cost of her placement as she had capital over £23,250. Mrs X agreed to pay a third-party top-up of £150 a week. The document she signed confirmed she understood the top-up could not be paid from her mother’s money.
12. The Council assigned a Social Worker to assess Mrs Y on 5 March. The Social Worker visited her on 11 March to start the assessment but did not complete it. On 14 March the care home closed to visitors because of COVID-19, which meant the Social Worker could not return to complete the assessment.
13. On 30 April Mrs X agreed completing the assessment over the telephone would not be suitable, and to extending her mother’s placement until the Social Worker could complete the assessment in person.
14. On 21 May the Social Worker discussed the possibility of Mrs Y returning to her own home to live downstairs. However, Mrs X agreed this would not be safe because of the layout of the property and the risk of falls.
15. In June 2020 Mrs Y’s capital in the bank fell below £23,250.
16. After the first lockdown was lifted, the Social Worker visited Mrs Y on 8 and 14 July, and completed an assessment on 22 July. Following a best interests decision, everyone agreed Mrs Y should move to extra care housing.
17. The Social Worker contacted the extra care housing scheme, for which Mrs Y was on the waiting list, in April, May and August, but it had no vacancies and could not say when it would.
18. In September the Social Worker contacted another extra care housing scheme which agreed to offer Mrs Y a placement. But it was still under development, which was delayed by COVID-19.
19. The Council asked Mrs X to provide Mrs Y’s bank statements so it could reassess her finances.
20. Mrs Y moved to the extra care housing scheme on 21 December.
21. On 22 February 2021 the Council told Mrs X her mother’s capital should not have fallen below £23,250 until 27 December. It said this was based on the capital she had in February 2020 (£38,105.99) plus her weekly income (£239.53, rising to £244.97 in April 2020), minus the cost of the care home (£532 rising to £544 in April 2020), her Personal Expenses Allowance (£30.65 a week) and other disregards (£21.44 for Council Tax and water rates). It said £17,586 had been withdrawn from Mrs Y’s account which was unaccounted for. It invited Mrs X to provide receipts for this expenditure so it could “recalculate”.
22. Mrs X says she told the Council she had receipts for the work done to her mother’s home so they could rent it out, but it said this would amount to deprivation of capital so she did not provide them. She says the work cost £3,000 to £4,000.
23. On 18 March the Council told Mrs X it considered the money spent on improving Mrs Y’s home, in which she did not live, as deprivation of capital and would therefore treat her as if she still had the money.
24. Mrs X complained to the Council in March about the time her mother had spent in the care home and the fact it had continued to charge her the full cost of her care despite her capital falling below £23,250.
25. When the Council replied to Mrs X’s complaint it said:
• she had acknowledged that the delay in moving her mother out of the care home had been because of the lockdown and COVID-19;
• it had told her the money spent on improving her mother’s home was deprivation of capital; and
• it had also told her she could not pay the third-party top-up from her mother’s money.

Is there evidence of fault by the Council which caused injustice?

26. The time Mrs Y spent in the care home was because of COVID-19, not fault by the Council. The Council was therefore entitled to charge her for her care.
27. Mrs X signed an agreement to pay a third-party top-up for her mother’s placement and confirmed that she knew her mother’s money could not be used to pay the top-up. There was no fault by the Council over its handling of the top-up agreement.
28. However, the Council decided any personal expenditure over the Personal Expenses Allowance (currently £24.90 a week, plus a savings disregard of £5.75), was deprivation of capital. But the Personal Expenses Allowance only applies to people with capital below £23,250, who are being supported by a council. There was no basis for saying Mrs Y could not spend more than her Personal Expenses Allowance. To do so and treat any personal expenditure over £32.65 a week as deprivation of capital was fault by the Council.
29. The Council invited Mrs X to provide evidence of what she spent her mother’s money on. When Mrs X told the Council they had spent some of her mother’s money on her home so they could rent it out, the Council dismissed this and said it amounted to deprivation of capital. It provided no explanation to support this claim or to explain why such expenditure was not reasonable and amounted to a deliberate deprivation of capital to avoid care charges. Although Mrs Y was not expected to return to her home, there is nothing to prevent people from renting their home to increase their income. Had Mrs Y remained permanently in the care home, support in the form of a deferred payment agreement would have been available to enable her to do this.
30. The Council needs to reconsider Mrs Y’s financial assessment, including the motivation for any deprivation of capital and the extent to which she deprived herself of capital.

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Agreed action

31. I recommended the Council:
• within four weeks, writes to Mrs X apologising for its failings and pays her £250 for the time and trouble it has put her to in pursuing the complaint; and
• within eight weeks, having first invited Mrs X to provide evidence of the money spent on Mrs Y’s home, reconsiders Mrs Y’s financial assessment, including the motivation for any deprivation of capital and the extent to which she deprived herself of capital, and provides clear reasons for its decision; and
• within 12 weeks, takes action to ensure officers deal with decisions on deprivation of capital in line with the Guidance.

The Council has agreed to do this.

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Final decision

32. I have completed my investigation on the basis the Council’s faults have caused injustice which needs to be remedied.

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Investigator's decision on behalf of the Ombudsman