Summary: Ms C complained about the way in which the Council carried out a financial assessment for her mother’s care home placement. Ms C said it took a lot of time and trouble to get the appropriate outcome, which caused her distress. We found there were delays in the process that should have been avoided. The Council has agreed to apologise for these.

The complaint

1. The complainant, whom I shall call Ms C, complained to us on behalf of her parents, whom I shall call Mr and Mrs P. Ms C complained about the way the Council carried out a financial assessment for her mother’s care home fees. She said:
• There was an unreasonable delay by the Council in completing her mother’s financial assessment, when the family requested one in November 2018.
• The total amount the Council has calculated in terms of the required reimbursement, is incorrect.

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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. 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)
4. 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

5. I considered the information I received from Ms C and the Council. I shared a copy of my draft decision statement with Ms C and the Council and considered any comments I received, before I made my final decision.

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What I found

Relevant legislation and guidance

6. Statutory Care Act Guidance says that a capital asset is normally defined as belonging to the person in whose name it is held, the legal owner. However, in some cases this may be disputed and/or beneficial ownership argued. Beneficial ownership is where someone enjoys the benefits of ownership, even though the title of the asset is held by someone else or where they directly or indirectly have the power to vote or influence a transaction regarding a particular asset. In most cases the person will be both the legal and beneficial owner.
7. Where ownership is disputed, a council should seek written evidence to prove where the ownership lies. If a person states they are holding capital for someone else, the council should obtain evidence of the arrangement, the origin of the capital and intentions for its future use and return to its rightful owner.
8. The Council’s charging policy states that ownership of capital may be held by the person, or for the person by another party. In all cases, capital will be taken into account where it is clear the person being assessed owns that capital. If there is a dispute, the policy says the Council will require documentary evidence to confirm who the capital belongs to. If this is not provided, capital will be treated as belonging to the person being assessed.

What happened

9. Ms C complained about the way the Council carried out a financial assessment for her mother’s care home fees. She said:
• There was an unreasonable delay by the Council in completing her financial assessment, when the family requested one in November 2018.
• The total amount the Council calculated in terms of the required reimbursement, was incorrect.
10. Ms C told me the Council met with her and her father in January 2017 to discuss her mother’s care. She said:
• She and her father explained at the time that the funds in her mother’s bank account had all come from her father. Her father had made payments from the Company/his account (a family business started by him) to support his wife, since she retired in 1986. This was made clear from the outset.
• They also explained the money had been put into the account to keep it separate from any other accounts held by my father and to provide care for them both should the need arise. This account was set up in place of any health insurance policy.
• As such, the Council should have advised at this time that her father would be entitled to keep half of the money in the account etc (if he could provide evidence the money had come from him).
• Instead, the Council advised her and her father that there would be no financial help from the Council until the funds in the account (s) were down to £23,250. We were told we could only approach the Council again for financial help when that would happen.
11. The Council says:
• Before Mrs P moved into residential care, she was cared for in the family home with the help of care workers and a day care placement. This care was a privately funded arrangement set up by Mr P, her husband, following advice from Mrs P’s GP.
• The Council has since acknowledged to Mr P that it could have offered Mrs P a financial assessment in January 2017, as it may have helped to explore the issues around Mrs P’s accounts at this time.
12. After a short spell in hospital, Mrs P went into a residential care home in January 2017. This was a self-funded private arrangement.
13. Ms C contacted the Council in November 2018 to say her mother’s capital was approaching £23,250. She asked for a financial assessment, which happened on December 2018. At the financial assessment visit, the Council identified there was £85,8525 in a bank account in Mrs P’s sole name. It was at this point that Mr P said for the first time that he considered these funds to be joint funds. However, he did not provide supporting evidence at the visit. Mr P also confirmed he closed numerous investments in Mrs P’s name since her move into long term care. The assessor asked Mr P to provide closing statements for any investments.
14. The Council asked for more information on 22 January 2019, including evidence that the account was joint. The Council says it only received part of this information at the end of January 2019, and therefore had to write to Mr P again three weeks later. It asked Mr P for statements for all accounts held by Mrs P from December 2016 to February 2017, including any accounts now closed. In response, it only received statements for Mrs P’s bank account from December 2016 to February 2017. As of mid-February 2019, there was £55,475 left in the account.
15. The Council completed its financial assessment in March 2019. It says that, as of then, Mr P had not provided sufficient information to evidence the funds in Mrs P’s bank account were partly his. As such, Mrs P was assessed as having to fund the full cost of her care. The Council informed Mr P of its decision in writing, informing he could appeal the decision.
16. Mr P wrote a letter to the Council at the end of March 2019, to say he disagreed with the outcome. He said his wife left her employment in 1986 and he had since then paid an amount into Mrs P’s account every month. The Council received Mr P’s appeal in June 2019. However, he did not provide any further documentary evidence with it.
17. The Council told Mr P in June 2019 that his appeal was not successful. In the letter, it explained how it had considered the information he provided, why that was not enough and what additional information it would need.
18. It took Mr P until September 2019 (three months) to provide the information. He also told the Council that the bank statements show he has paid £188,600 into the bank account since 2001. As such, he said the account is a joined account and half of this money £94,300 should be his.
19. As a result of the additional information Mr P provided, the Council concluded in November 2019 that the account was joint. This meant that Mrs P’s had significantly less capital and her share of the funds had already reached £23,250, before Ms C first approached the Council for a financial assessment. The Council initially decided that it would therefore start to pay for Mrs P’s care from November 2018 onwards, when Ms C contacted the Council. This meant it would reimburse any fees that Mrs P should not have had to pay after November 2018.
20. The Council now believes this decision was wrong. It told me it reviewed the case in response to the Ombudsman’s enquiries. As such, the Council says it has now concluded that the information it received from the family does not in fact show that Mr P personally added to the account in any way. Funds were transferred to the account from his company account, rather than personally, and several payments were made to Mr P from the account. Mr P acknowledged in a letter of 28 January 2019, that his wife received an income from the company between 2008 until February 2017. On this basis any payment to Mrs P would be funds belonging to her rather than Mr P; it being a choice of the company to provide Mrs P with an income in the form of a wage. Mr P provided a P14 to confirm the tax paid for this period. There were no contributions into the account from Mr P personally. Therefore, the Council considers that the decision made in 2019 was incorrect. This error has been to Mr P’s advantage, as the outcome was to treat the opening balance on 17 January 2017 as belonging jointly to the couple, resulting in a financial gain of £90,724.30. The Council paid this amount back to Mr P.
21. Ms C says the family subsequently told the Council that, before her mother went into a care home, her father paid £19,783.00 from his personal account to pay for his wife attending a day centre and for visits from carers. Ms C says that, as such, the family asked the Council on 5 December 2019 how these costs would be factored in, as part of the financial assessment. However, it took until September 2020 before the Council responded to this and asked the family to provide evidence. Ms C says this was an unreasonable delay.
22. The Council agreed in July 2020 to use the actual date Mrs P’s capital reached £23,250, rather than the date they approached the Council (November 2019), as the start date for Council support. It did this because it acknowledged it could have carried out a financial assessment in January 2017. As such, it said Mrs P’s capital reached £23,250 on 30 June, and it would reimburse the fees that had been overpaid since then (£72,356).
23. The Council told Mr P in September 2020 that it could do a financial reassessment if he provides information about the payments that he made for Mrs P’s care before she went into the care home. Ms C provided the information four days later.
24. The Council acknowledged to me that it did not respond in a timely manner to the issue Ms C raised in December 2019, for which it is sorry. The Council told Mr P the refund would be £88,564 (October 2020) and changed it to £91,846 and then £90,724. Ms C confirmed on 20 January 2021 they received this amount.
25. Ms C says that, due to the Council’s delay, it took a long time until her father received the money back that belonged to him. As such, she wants the Council to pay interest on the money for a two-year period.
26. In response, the Council said that:
• It acknowledges this has been a long and complicated case Throughout the process, it had to ask Mr P for additional information. Once received, it processed this in a timely manner.
• As such, it does not consider there is a justification for paying Mr P an amount as compensation for any delay (such as paying interest).
27. The Council says:
• It has learnt lessons from this case and wishes to ensure that this situation does not happen again. The Council will be implementing changes in the financial assessment process for complex cases including:
1. Tracking systems when requesting and receiving information and ensuring information provided meets the requirements needed
2. Agreeing where possible a single point of contact for information gathering and responses at the start of the process
3. Increased support and supervision for officers in relation to: scrutiny of information provided i.e. bank statements; greater clarity on the process for joint ownership and the l need to clarify information throughout the process; more communication about what is provided and understanding what the individual feels this shows; implementing formal case discussion meetings for complex cases
• It will also review the Appeals Process to ensure the Council’s discretionary duties are executed clearly and correctly.

Analysis

28. Where it appears to a council that an adult may have needs for care and support, the council must assess the adult’s needs. Where the adult needs support for which the Council would charge, it must also assess the level of the adult’s financial resources. This did not happen, which is fault. If the Council had done this in January 2017, the issue about the joint account would have been solved earlier.
29. However, I did not find there was fault by the Council between November 2018 and November 2019. The Council made decisions (in March, June and November 2019), within a reasonable timely manner and based on the information it had received. It took until September 2019 before Mr P had provided all the information the Council needed to support his case.
30. There was however an unreasonable delay by the Council of nine months to respond to Ms C’s request from December 2019. However, I am unclear why Ms C or her father did not raise this issue with the Council earlier in the assessment process, for instance at the visit in November 2018. This would also have enabled an earlier decision on the matter by the Council.
31. Upon reviewing the case, the Council concluded that it made a mistake in 2019 by concluding the funds in the account were joined. The Council said that, based on the information, the payments were an income from the company that therefore belonged to Mrs P. The Council has explained that the error it made resulted in Mr P receiving £90,000 back from the Council, which he should not have received back. As such, there is no interest to be paid.
32. The Council has already identified steps to put in place to improve the process in place for more complex cases.

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Agreed action

33. I recommended that, within four weeks of my decision, the Council provides an apology for the delays identified above and any distress these may have caused to Mr P and Ms C.

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Final decision

34. For reasons explained above, I found the Council caused delays that should have been avoided. This was fault.

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Investigator's decision on behalf of the Ombudsman