Summary: Mr X complained about an invoice the Council sent for his mother (Mrs Y) ’s care and support charges. The Council was at fault for delays starting Mrs Y’s financial assessment and for failing to provide information or updates about the financial assessment process. However, the Council was not at fault for charging full fees when Mr X did not engage in the financial assessment. We cannot make any suitable or meaningful recommendations due to a lack of financial information.

The complaint

1. Mr X complained about an invoice the Council sent for his mother (Mrs Y) ’s care and support charges.
2. Mr X said the Council failed to do a financial assessment before or while Mrs Y was in a care home and failed to provide any information about the financial assessment process. Instead, after Mrs Y passed away, the Council assessed she had to pay the full costs of her care and support.
3. Mr X said it was distressing to receive a large invoice at a time the family was grieving.

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The Ombudsman’s role and powers

4. 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)
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(i), as amended)

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How I considered this complaint

6. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Care Act 2014.
• The Care and Support (Direct Payments) Regulations 2014.
• The Care and Support Statutory Guidance 2014.
• Government guidance on powers of attorney and dealing with the estate of someone who has died.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

Assessment process

8. The Care Act 2014 provides a single legal framework for charging for care and support under sections 14 and 17. It enables a council to decide whether to charge a person when it is arranging to meet a person’s care and support needs.
9. 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.
10. Everyone whose needs are met by a council must receive a personal budget as part of their support plan. The personal budget gives a person clear information about they money allocated to meet their needs. (The Care and Support Statutory Guidance, Paragraph 11.7)
11. When a council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person has to pay towards the cost of their residential care.
12. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. The upper capital limit is currently £23,250. This sets out at what point a person is entitled to access council support to meet their eligible needs. People who have over the upper capital limit are expected to pay the full cost of their residential care home fees.
13. Once a person’s capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
14. Where a person’s resources are below the lower capital limit, which is currently £14,250, they will not need to contribute to the cost of their care and support from their capital.
15. Councils should carry out assessments over an appropriate and reasonable timescale. They should inform people of an indicative timescale and keep them informed throughout. (The Care and Support Statutory Guidance, Paragraph 6.29)
16. Where a person refuses a financial assessment or a council cannot carry out a full assessment because a person refuses to cooperate with the assessment, a council is entitled to determine a person’s financial resources exceed the upper capital limit. (The Care and Support (Direct Payments) Regulations 2014, section 10)

Power of attorney and dealing with someone’s estate

17. People with lasting power of attorney for another should keep a record of important decisions made on the person’s behalf. People with power of attorney over finances and property should also keep a record of the person’s assets, income, and how their money is spent.
18. A person dealing with someone’s estate after they die has a legal responsibility for their money, property, and possessions. They must pay any debts for the person who has died.
19. The person dealing with the estate should place a notice in ‘The Gazette’ (which is an official public record) giving creditors two months to claim anything they are owed. The estate’s assets should not be distributed until the two months is up or the person may have to pay any outstanding debt themselves.

What happened

20. I have summarised below some of the key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
21. Mr X and his brother, Mr Z, had lasting power of attorney (LPA) for Mrs Y’s health and welfare and for her property financial affairs.
22. Mrs Y suffered from Alzheimer’s and received regular care and support at home from Mr X and Mr Z. However, Mr X contacted the Council in May 2021 to seek a needs assessment because Mrs Y’s condition worsened, and Mr X and Mr Z struggled to look after her.
23. The Council completed a needs assessment for Mrs Y in July. Mr X said Mrs Y needed 24-hour care. It was decided between Mr X and the Council that Mrs Y would move to Northfield Care Centre as a permanent resident. Mrs Y’s placement started at the end of July.
24. Mrs Y’s needs assessment suggested her weekly personal budget would be £520.09. The ‘likely client contribution’ section of the assessment was left blank.
25. I will call the social worker who carried out Mrs Y’s needs assessment Officer A. Officer A told Mr X the Council would need to complete a financial assessment to find out what contribution Mrs Y would need to make towards the costs of her care and support.
26. Officer A recorded the weekly rate for Northfield Care Centre was £544.16, with an added £50 top-up fee. Officer A discussed the top-up fee with Mr X, and he agreed to pay. Officer A sent Mr X a letter confirming details of the top-up fee.
27. Officer A also sent a financial assessment referral form to the Council’s financial assessment team.
28. Sadly, Mrs Y passed away in September 2021.
29. An officer from the Council’s financial assessment team, who I will call Officer B, contacted Mr X in October, about a month after Mrs Y’s death, to arrange a financial assessment. Mr X said he had the impression Mrs Y had nothing to pay. Officer B checked with Officer A to confirm this.
30. Officer A then spoken to Mr Z by telephone. Mr Z said the care home manager told them the Council was paying Mrs Y’s fees and everything was taken care of. Officer A reminded Mr Z they had previously told the family Mrs Y would need a financial assessment to decide her contribution. Mr Z agreed but said they were later led to believe the Council was paying. Mr Z said Mrs Y’s estate had already been settled and all her money was gone.
31. Officer B contacted Mr X again in November. Officer B’s case notes state Mr X said he did not want to complete a financial assessment and would not pay towards Mr Y’s care. He confirmed Mrs Y’s estate was settled. Officer B said executors should make sure all debts are settled before distributing the estate. Mr X said the Council should have assessed Mrs Y’s finances before she went into the care home. Officer B said the Council would issue an invoice for the full costs of Mrs Y’s care.
32. Mr X complained on 15 November. He said while Mrs Y was in the care home Officer A said the Council would fund her care. The care home manager also confirmed this. Mr X said the Council contacted him out of the blue, a month after Mrs Y died, to do a financial assessment. He asked why the Council had not done the assessment sooner. He said the Council had been negligent in not being clear about what was happening and caused unjustified delays.
33. The Council sent its stage one complaint response on 22 November. It said:
• Officer A told Mr X the Council needed to do a financial assessment to find out Mrs Y’s contribution just before she went into the care home.
• Officer A did not at any point say the Council was funding Mrs Y’s care.
• Its financial assessment team was notified on 26 July 2021 that it needed to do an assessment. This was delayed due to COVID-19 and other challenges. The Council apologised for this.
• The offer of a financial assessment was still available. It gave Mr X 21 days to get in touch, otherwise full costs would be payable.
34. Mr X made a stage two complaint on 18 December. He did not dispute Officer A saying the Council needed to do a financial assessment, but the Council did not say how it would carry it out. He said for all the family knew, the Council could have already done the financial assessment without their knowledge.
35. The Council emailed Mr X on 20 December. It said it could not complete a financial assessment, therefore the full charges for Mrs Y’s care and support were due. It sent Mr X an invoice for £4,431.02.
36. The Council sent its final complaint response on 22 December. It said it would not be beneficial to either party to conduct a further investigation because its stage one response adequately addressed Mr X’s concerns. It said a further review would not change the result.

My investigation

37. In response to my enquiries, the Council told me it did not send any letters about the financial assessment process as it could not secure an appointment with Mr X. It carries out financial assessments by telephone and sends fact sheets afterwards.
38. The Council said it did not complete any financial assessments because Mr X would not take part in the process. It gave him another chance to take part at stage one of the complaint process, but he did not take this option up.
39. The Council said, because of the COVID-19 pandemic, it had a delay of three months to book an appointment for a financial assessment. It said it has reduced this wait time to six weeks.
40. Mr X told me the family destroyed Mrs Y’s old bank statements and paperwork following her death. He said if the Council had acted correctly and promptly, he could have provided the required information at the outset and Mrs Y would not have been charged the full amount. He said it is unfair for the Council to penalise him for its own errors.

Analysis

41. There are no set timeframes in law or the guidance stating how long it should take the Council to carry out a financial assessment, but it should be within an appropriate and reasonable timescale. In this case, it took the Council three months to contact Mr X about Mrs Y’s financial assessment. That is too long and amounts to fault. I note the Council has already apologised to Mr X for this.
42. Councils should also give an indicative timescale and keep people informed. I have not seen evidence the Council did this. Once Mrs Y’s needs assessment was completed Mr X did not hear anything or receive any information from the Council about the financial assessment process. That was fault. The Council should send information about the financial assessment process as early as possible and should keep people updated, especially where there are delays.
43. The Council did tell Mr X it needed to complete a financial assessment when it assessed Mrs Y’s care needs in July 2021. Mr X does not dispute this. There was therefore an understanding Mrs Y may need to contribute towards the cost of her care and support.
44. The Government expects those with responsibility for someone’s estate to take steps to find out whether they owe any money, and to not distribute the estate’s assets for two months.
45. When Mrs Y died Mr X and Mr Z had responsibility for her estate. They did not contact the Council to enquire about the financial assessment and I have not seen evidence they took steps to discover whether Mrs Y owed any money. On the evidence seen, they settled Mrs Y’s estate within a month. If they had waited two months, as the Government expects, they would have been able to provide the information the Council needed to complete Mrs Y’s financial assessment.
46. When Mr X and Mr Z declined to engage in the financial assessment process, the Council was entitled to charge the full amount for Mrs Y’s care and support.
47. However, I am also mindful that if the Council had kept Mr X informed, if it had provided information about the financial assessment process, and if it had started the financial assessment in a reasonable time, it would have been able to complete Mrs Y’s assessment.
48. Mr X told me Mrs Y had about £16,000 when she died. That is likely to mean Mrs Y would need to pay a contribution to the costs of her care and support, but not the full costs. However, because Mr X no longer has Mrs Y’s financial records I cannot be sure about this, and I cannot make any meaningful recommendations about a suitable remedy. I do not consider it would be appropriate to waive the fees the Council charged, because it is likely Mrs Y would have had to contribute something, and there were failings by Mr X as well as the Council.
49. As LPA, Mr X had a duty to keep a record of Mrs Y’s assets, income, and expenditure. Mr X told me he may be able to obtain some of Mrs Y’s financial records. If he can do so, Mr X should provide the Council with this information so it can carry out a financial assessment and find out how much Mrs Y had to pay.
50. The Council has made improvements, bringing the wait time for a financial assessment down to a more reasonable level. I therefore do not consider it necessary to recommend any service improvements.

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Final decision

51. I have completed my investigation. The Council was at fault for delays starting Mrs Y’s financial assessment and for failing to provide information or updates about the financial assessment process. However, the Council was not at fault for charging full fees when Mr X did not engage in the financial assessment. We cannot make any suitable or meaningful recommendations due to a lack of financial information.

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Investigator's decision on behalf of the Ombudsman