Summary: Miss X complained the Council delayed carrying out a financial assessment for her father Mr Y’s care home placement and did not discuss affordability and top ups with her. There was no fault in the way the Council carried out the financial assessment. There was a delay in it agreeing funding with the care provider. The care provider has already revised the bill to reflect this so there is no outstanding injustice. The Council delayed ending the placement so Mr Y was charged his contribution for longer than he should have been. The Council has agreed to ensure Mr Y is not charged his client contribution from mid August 2022 to the date the placement ended.

The complaint

1. Miss X complained the Council delayed carrying out a financial assessment for her father Mr Y’s care home placement and did not discuss affordability and top ups with her. It also failed to pay Mr Y’s fees after he was admitted to hospital and delayed ending the placement. This has left Miss X with a large care bill she is unable to pay.

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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(i), as amended)

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How I considered this complaint

4. I have considered the information provided by Miss X and have discussed the complaint with her on the telephone.
5. I have considered the Council’s response to our enquiries and the relevant law and guidance.
6. I gave the Council and Miss X the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

Relevant law and guidance

7. 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 a 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.
8. The rules state that people who have savings over the upper capital limit (currently £23,250) 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.
9. A council will set a personal budget, which is the amount it thinks is needed to pay for the care in a person’s care and support plan. If a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if:

• the person can find someone else (a ‘third party’) to pay the top-up (the difference between the personal budget and the actual care home fees); or
• the resident has entered a deferred payment scheme with the council (which means care fees will not be paid until a later date when their home is sold) and is willing to pay the top-up fee themself.

10. In such circumstances, the council needs to ensure the person paying the top-up enters a written agreement with the council and can meet the extra costs for the likely duration of the agreement.

Lasting power of attorney

11. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
12. There are two types of LPA: property and finance, which gives the attorney power to make decisions about the person’s finance and property matters, and health and welfare which gives the attorney power to make decisions about the persons health and personal welfare.

Deprivation of assets

13. Where the council decides, after making appropriate enquiries, a person has deliberately tried to avoid paying for their care by depriving themselves of capital or income, it may charge the person as though they still have the capital or income.

What happened

14. Mr Y has dementia. Mr Y lived in the same property as Miss X and her family. In February 2021 Miss X arranged a respite stay for Mr Y at a care home. The care provider charged £1,165 per week. Miss X has LPA for Mr Y’s property and finances and signed the contract for Mr Y’s care.
15. Mr Y settled well at the care home and so Miss X requested that he stay there long term and the care provider agreed to this. As Mr Y’s LPA Miss X signed the contract for care and Mr Y privately funded his care.
16. In August 2021 Miss X contacted the Council to request a financial assessment as Mr Y’s money was reducing. The records show the Council sent Miss X a financial assessment form for completion later that month. In early September 2021 a social worker spoke with Miss X who confirmed she had received the financial documentation and would complete it. The social worker said they would need to assess whether Mr Y needed a long term care home placement. They advised Miss X that the care home did not accept the Council rates and would require a third party top up. The finance team sent Miss X two chaser letters in September 2021 as it had not received the completed form and supporting information.
17. The social worker visited Mr Y and assessed he lacked capacity. They spoke with Miss X who confirmed she had completed and returned the finance documentation in late September.
18. The finance team contacted Miss X in October 2021 with queries around expenditure and to request copies of bank statements.
19. In late October 2021 the social worker concluded Mr Y required 24 hour care. They noted the care home may require a third party top up or a move to an alternative home would need to be considered. They updated the care home that they were still awaiting the outcome of the financial assessment as Miss X had not provided all the documents requested. They asked if the care home would accept the Council’s rate and whether it would speak with Miss X regarding top ups.
20. The Council’s finance team contacted Miss X in late October to request receipts and an explanation of some expenditure. The social worker requested an update from the finance team in late November 2021. It advised it was still awaiting the information it had requested and had called the home number but it was not answered.
21. In November 2021 the records show the social worker telephoned the care home three times and left messages then followed this up with two emails, asking the manager to call them with regard to Mr Y’s care needs.
22. In Mid January 2022 the social worker spoke to Miss X who said she had not had contact from the finance team since October 2021. She told the social worker that no-one was currently paying for Mr Y’s care. The social worker again emailed the care home and asked if it would accept the Council’s rates.
23. The finance team spoke to Miss X and explained it considered she had used Mr Y’s capital for her own use. As this was a deprivation of assets, this meant Mr Y would be treated as if he still had the money when calculating when he was eligible for assistance. It asked for receipts of expenditure and for further bank statements.
24. In early March 2022 the Council contacted the care home again to ask if it would accept the Council’s rate. It responded 19 days later. It said it needed confirmation of what the Council’s rate was and any contributions that could be made. Miss X had suggested she could pay £100 a month as a top up. It said it was not certain it would accept the Council rate ‘but there are some loose ends which need addressing before a final decision is made’.
25. In late April 2022 the finance team contacted Miss X to chase up the remaining bank statements it had yet to receive.
26. In early May 2022 the care home manager contacted the Council to discuss Mr Y’s debt which stood at around £46,000. The manager said they had spoken to Miss X who agreed to send the bank statements requested to the Council. The manager advised they could not accept the Council’s rate due to Mr Y’s complexities. The care home said it would need a top up in addition to the Council’s rate and would not accept Miss X’s offer of £100 a month. In the first instance the manager said they needed to know when the Council would take over his funding.
27. In late May 2022 the finance team calculated that, taking into account the money spent from Mr Y’s account, he dropped below the capital threshold from late May 2022. The Council updated the care home. It advised the Council would pay £677.29 minus Mr Y’s assessed contribution of £291.50 for the first 4 weeks and £199.10 per week after. It said Miss X should be invoiced for Mr Y’s contribution only. There is no record the care provider agreed to accept the rate the Council offered.
28. The Council wrote to Miss X in late May 2022 setting out the contribution Mr Y needed to pay towards his residential care from late May 2022 onwards. It explained it had assessed that £35,000 was spent out of Mr Y’s account which was not related to care costs.
29. On 1 July 2022 the Council requested its brokerage team look to source another care home as the current placement may not accept the Council’s rates.
30. In early July Mr Y’s behaviour deteriorated and he was admitted to hospital. The Council’s notes of mid-July record an alternative placement may need to be sourced as the care home will be unlikely to accept council rates long term and were unable to manage Mr Y’s increased mental health needs.
31. The Council spoke to the care home in late July. The care home advised it had not given Mr Y notice and his belongings remained at the care home. It said it would need to review if it could meet Mr Y’s needs when he was fit for discharge.
32. In early August Miss X contacted the Council as the care home was still charging Mr Y for his placement. Miss X said she understood she owed the care home around £30,000 at this point.
33. In late August 2022 the care provider contacted the Council. The debt stood at around £46,000. It had met with Miss X but she could not pay the debt. It offered a repayment plan over six months which Miss X said she was unable to afford. It asked if the Council would pay the debt and pursue it with Miss X. It advised it could not accept the Council’s rate of £677.29 due to Mr Y’s needs. It also asked the Council to decide whether the placement should continue or be ended. The Council advised it considered the debt from before late May to be a matter between the care provider and Miss X.
34. In late September 2022 the Council agreed Mr Y needed to move to an alternative care home and it contacted the care home to end the placement.
35. In early October 2022 the care provider contacted the Council as it had not received any funding from the Council. It followed this up in mid October as it had still not heard anything.
36. In early November 2022 the care provider contacted the Council again to resolve the debt and to agree the rate the Council would pay the care home. The care provider said there was still a significant debt and it could not agree the final balance due from Miss X. The debt stood at around £67,000.
37. In mid November 2022 the care provider confirmed Miss X had been in touch to discuss a repayment pan but this had not been agreed. It confirmed the Council rates it would accept for the period from late May 2022 until the placement ended in late September.
38. In January 2023 the social worker sought confirmation of what was happening with the Council funding. The finance team responded in mid-February that Mr Y’s funding was only set up for late May 2022 to July 2022 i.e. from when the Council agreed to start contributing to when he went into hospital.
39. In late February 2023 Miss X contacted the Council as she had received a solicitor’s letter from the care provider for a debt of £70,000. She asked what the Council had paid to the care home and when it had closed the placement.
40. The social worker contacted a Council manager twice in March and April to try and find out what was happening with the debt. As at May 2023 the care provider had only received part payment from the Council.
41. The care provider has now revised the invoices owed by Miss X. Between late May 2022 and September 2022 when the placement was terminated, it has only charged for Mr Y’s client contribution.

Findings

42. Miss X has LPA for Mr Y. As such she has responsibility for managing his finances. Miss X chose the care home, was aware of its cost and signed the contract. The Council had no involvement in arranging the placement.
43. Miss X first approached the Council for a financial assessment in August 2021 but this was not concluded until May 2022. The records show this delay was not down to Council fault. Miss X delayed returning the forms to the Council and there was further delay in her providing the required bank statements and evidence in support of the financial assessment. There was no evidence of significant delay by the Council.
44. The Council concluded Miss X had spent some of Mr Y’s money on items other than care and so had deprived him of assets. The Council considered the information Miss X provided in support of the financial assessment and I have seen no evidence of fault in the way it reached this conclusion or calculated the financial contribution. Miss X has been left with a significant debt but that is not the result of Council fault.
45. When Miss X approached the Council it explained it would need to assess Mr Y’s long term care needs and that a top up payment may be required. Mr Y left the care home before any agreement was reached between the care provider and Council about the rate for Mr Y’s placement at the care home or before any agreement was reached about top ups. The Council delayed sorting out the rate with the care provider. This was fault. It is still not clear whether it has paid all that is owed to the care provider. However, that is a matter between it and the care provider.
46. The delay in resolving this matter was fault and meant the debt the care provider was initially pursuing was greater than it should have been. The care provider has since sent Miss X a revised invoice and since late May 2022 it is only charging her for the correctly calculated client contribution so there is no outstanding injustice. The size of the debt has caused Miss X significant distress and worry. However, even with this adjustment the debt is still significant, so Miss X would still have been caused distress and worry.
47. The Council delayed ending the placement at the care home. Miss X raised her concerns about the continuing charges whilst Mr Y was in hospital and the Council did not resolve this. Given Mr Y’s presentation and the care provider’s concerns I would have expected the Council to either advise Miss X to end the placement or to have done this itself much sooner and at the latest by mid-August 2022. Although the care provider has revised the invoices to reflect Council funding from mid-May 2022, Miss X has still been charged her client contribution for the full time Mr Y was in hospital, which is an injustice.

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Agreed action

48. Within one month of the final decision the Council has agreed to ensure Mr Y is not charged his client contribution for the period Mid August 2022 to late September 2022.
49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. I have completed my investigation. There was evidence of fault causing injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman