Summary: Mrs X complained about the way the Council handled the care costs when her father went into residential care. The Council was not at fault for the way it handled the care costs nor for asking Mrs X to repay direct payments in the circumstances. It was at fault for a delay in pursuing community care charges and should apologise for this.

The complaint

1. Mrs X complained about:
• the way the Council handled the care costs when her father, Mr F, went into residential care; and
• the Council’s decision to reclaim £963.79 of direct payments.
2. Mrs X says the Council’s letters asking for payment caused her anxiety and distress at a difficult time.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I spoke to Mrs X and considered the information she provided.
7. I considered the Council’s replies to my enquires and relevant law and guidance, as set out below.
8. Mrs X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

9. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. 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 costs of their residential care.
10. The rules state that people who have over the upper capital limit are expected 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.
11. 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 the care home fees.

Property disregard

12. For the first 12 weeks after the person moves into a care home, councils should not include the value of their main or only home when calculating the amount of capital they have. This allows the family space to make decisions about how best to meet the costs of care.

Deferred payment agreements

13. The guidance says a person should not be forced to sell their home during their lifetime to pay for their care. Subject to specific criteria, the council should offer the person a deferred payment agreement. This defers payment of the care costs until the property is sold after the person’s death.

Direct payments

14. Where someone who is living in their own home needs care and assistance the council may make direct payments to meet some or all of their eligible care and support needs. Direct payments may also be used to provide respite for a carer.

NHS Continuing healthcare

15. NHS Continuing Healthcare (CHC) is a package of care arranged and funded by the health service. The application process involves completing a CHC checklist. If initial criteria is met, this triggers a Decision Support Tool (DST) assessment, which is arranged by nursing staff but usually also attended by close family members and the council’s allocated social worker.

Mental capacity

16. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. Any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.

What happened

17. Mr F was living in his own home and his daughter, Mrs X was caring for him there during the day.
18. From 2016 the Council made direct payments to cover day care for Mr F to give Mrs X a break from her caring role. In February 2017, it agreed to make direct payments to cover the cost of 28 days support, including overnight stays, for the following year. Following a review in August 2017 the Council agreed to increase the number of overnight stays for the year to August 2018. It wrote to Mrs X on 9 November 2017 to confirm Mr F needed to pay a contribution of £15 per night towards the residential care and any costs over the Council’s funding allowance of £45.01 per night.
19. Mr F went into a care home for respite care on 20 February 2018. It was originally agreed he would stay there until 26 February but this was later extended to 13 March 2018. Mrs X says the family paid for the extended respite care, which cost £952.98, from their own funds.
20. Mrs X says Mr F returned home on 14 March but it was soon clear he could not manage at home and needed residential care. Mrs X says she spoke to the social worker who advised her Mr F should return to the care home and she could use the direct payments remaining to help with the costs. Mrs X says Mr F returned to the care home on 16 March for extended respite. There is a dispute about whether Mr F returned home. The care home told the Council Mr F lived there continuously and there is nothing in the Council records about him going home. Nor is there anything in the records to show Mrs X was advised she could use direct payments for Mr F’s long term care.
21. Council records show a social worker visited Mr F on 26 March and decided Mr F did not have capacity to make decisions about his care. The social worker met with Mrs X and Mr F on 4 April and made a “best interests” decision that he should remain in the care home. Also on 4 April they completed the CHC checklist, which indicated Mr F may meet the criteria for CHC funding. A DST meeting was held on 10 May 2018. This concluded Mr F did not meet the criteria for CHC funding. Mrs X appealed that decision.
22. The Council wrote to Mrs X on 19 April 2018 to confirm Mr F was in long-term care from 13 March 2018. The letter stated Mr F would need to pay a contribution of £108.50 per week towards the costs of his care pending a financial assessment. The Council completed a financial assessment on 22 May 2018 and provided information about deferred payments. It wrote to Mrs X on 14 June 2018 to confirm the contributions required. The letter said Mr F would need to pay his care costs in full from 5 June 2018 unless Mrs X signed a deferred payments agreement on Mr F’s behalf. The Council wrote to Mrs X on 10 August 2018 to confirm Mr F was eligible for the deferred payments scheme but it assumed she was not wanting to do this because she had not returned a completed form.
23. The care home contacted the Council in August 2018 because Mrs X had refused to pay the care fees pending the CHC appeal. The Council contacted Mrs X to explain she needed to pay the care costs and the possible consequences of not doing so. It explained if the appeal was successful any care costs already paid would be refunded. Mrs X replied that she had consulted solicitors and remained of the view it was in Mr F’s interests not to pay any care costs until the outcome of the appeal was known. She accused the Council of making “biased threats” that were “neither productive nor appropriate” and of harassment.
24. The Council paid care costs of £6,817.33 to the care home in November 2018 to secure Mr F’s placement. It issued an invoice to Mrs X for this amount in December 2019. It says it did not invoice sooner because Mrs X complained in November 2018 so it put recovery on hold. However, it says Mrs X was aware of the amounts owed because the care home sent her invoices and reminders.

Direct payments recovery

25. In July 2018 the Council requested information from Mrs X so it could carry out an audit of the direct payments account. Mrs X provided information in September 2018 and the Council completed the audit in October 2018. This revealed two payments from the direct payments account were used to pay for permanent residential care: £476.49 in April 2018 and £487.30 in September 2018. The direct payment scheme cannot be used for permanent residential care so the Council wrote to Mrs X on 22 October 2018 asking her to repay those sums. Mrs X complained in early November 2018 and recovery was put on hold.
26. Mrs X says she thought the Council had waived the invoice as it took no action for six or seven months and then started recovery action again.
27. In response to my enquiries the Council explained Mrs X had not provided a statement for how direct payments were used between 31 December 2017 and 29 January 2018. The Council carried out further analysis and calculated £840.64 should be repaid to the Council.

Community care fees

28. The Council invoiced Mrs X for community care fees for the period October to December 2017 in January 2020. It accepts there was a delay in pursuing this but has provided a record to show Mrs X was aware of the amount due when the financial assessment for residential care was carried out in May 2018. That record shows Mrs X was given a statement setting out the community care fees owed, which she said she would not pay because the care was inadequate.
29. Although Mrs X has not complained to us about the care in that period, the records the Council provided show she complained about an incident on 15 December 2017. Her father was put in a taxi for day care but on arrival he refused to get out and said he wanted to go home. Mrs X’s complaint was that properly trained staff should have been able to persuade him to attend the day centre. The Council responded to her concerns and agreed not to charge for community care fees from 6 December 2017, although Mr F had attended the day care without any problem on 8 December 2017.
30. The recent invoice to Mrs X stated it included charges to 10 December 2017. In its response to my draft decision the Council confirmed it will adjust the invoice for community care charges to ensure there are no charges from 6 December and will re-issue that invoice.

My findings

Care fees – permanent care

31. There is a dispute about whether Mr F returned home for two nights or remained in the care home. However, it was clear by 16 March Mr F could no longer be left on his own and needed long term residential care.
32. Therefore, it was not fault for the Council to say he was permanently resident from 13 March 2018, provided that it applied the 12 week property disregard. This means it did not take into account the value of his home for the first 12 weeks when calculating his contribution to his care fees.
33. The records show the Council did apply the disregard, which meant Mr F did not have to pay the full costs of his care until 5 June 2018. Treating Mr F as permanently resident from 16 March would only delay the payment of full care costs by three days so would not make a significant difference.
34. There was no delay by the Council in assessing whether Mr F was eligible for CHC funding. It was clear Mr F was not eligible in mid May and Mrs X appealed. Mrs X says the Council should not charge for care costs until the appeal is heard. Appeals can take many months so Councils do need to charge, otherwise the placement at the care home is put at risk. The Council explained to Mrs X the care fees would be refunded if the appeal was successful. The records also show it gave Mrs X information about deferred payments, which would have deferred the care costs until Mr F’s home was sold, but she did not pursue this. The Council was not at fault.
35. The Council paid the care home £6,817.33 in November 2018 to secure Mr F’s placement when Mrs X refused to pay the care fees. It is entitled to recover this sum from her. It would have been better if the Council had written to Mrs X to confirm it had made the payment and would recover this sum from her. However, it had explained the care home needed to be paid and I am satisfied Mrs X was aware of the costs because the care home sent her regular statements.
36. The Council delayed recovering the costs because Mrs X made a complaint and then complained to us, which was appropriate. It sent an invoice in December 2019 but has agreed to suspend further recovery for four weeks from 27 January whilst I completed my investigation. The Council was not at fault.

Direct payments recovery

37. The Council agreed Mrs X could use direct payments to cover the cost of respite care for Mr F so she could have breaks from her caring role. This was subject to Mrs X paying the client contribution and top-up payments. Mrs X was also required to provide information about how the payments were used so the Council could check payments were in line with the agreement.
38. Although Mrs X could have used direct payments for the respite in February and March 2018, she would have had to pay the client contribution and top-ups. In the event, Mrs X decided to pay for the respite from her own funds and then used direct payments for the permanent residential care, which the direct payment agreement does not allow. The Council was therefore entitled to recover those sums and was not at fault in asking Mrs X to repay them.
39. The Council suspended recovery whilst it was investigating Mrs X’s complaints, which was appropriate. It would have been helpful if it had written to Mrs X to explain it had merely suspended recovery and this did not mean it had cancelled the invoice.
40. The Council has since carried out further analysis of the direct payment account and agreed to reduce the sum recovered. Its proposal and the basis of its calculations seem fair and reasonable in the circumstances.

Community care fees

41. There was no fault in the way the incident on 11 December 2018 was handled. Care staff did not want to cause Mr F further distress and could not force him to attend the day centre if he did not want to do so.
42. The Council agreed not to charge from 6 December. It will remove any charge between 6 and 10 December and reissue the invoice.
43. There was also a very long delay in recovering these fees, which was fault.

Agreed action

44. The Council will, within one month of the date of the final decision:
• apologise to Mrs X for the delay in sending an invoice for the community care charges; and
• amend and reissue that invoice.
45. The Council also agreed to reduce the amount it is recovering in relation to the direct payments and reissue the invoice.

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Final decision

46. I have completed my investigation. I have found fault leading to personal injustice and recommended action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman