The Ombudsman's final decision
Summary: There is no fault in the way the Council dealt with Mr X when he went into a care home, in the financial assessment for his care charge or in the way it dealt with concerns about financial abuse. We find the Council acted in line with charging rules and with its responsibilities in the Care Act 2014 and Mental Capacity Act 2005 to safeguard Mr X.
The complaint
Mrs X complained the Council placed her husband Mr X in a care home and accused her of financial abuse. She also complained she does not have enough money once she has paid his care costs.
Mrs X said this caused her avoidable distress and financial hardship.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
How I considered this complaint
I considered Mrs X’s complaint to us, the Council’s response to her complaint and documents in this statement. I discussed the complaint with Mrs X Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance The Mental Capacity Act 2005 and Code of Practice set out the principles for making decisions for adults who lack mental capacity. An assessment of a person’s mental capacity is required where their capacity is in doubt (Code of Practice paragraph 4.34) Where a person lacks capacity to make a decision, any decision made on their behalf should be taken in their best interests.
When dealing with adults who lack capacity to make decisions about their care, councils should consult and take into account the views of: people the person has named to consult; carers; their attorney or deputy. Generally, councils consult about care and support plans by holding a best interests meeting involving relevant people.
If a council has reasonable cause to suspect abuse of an adult who needs care and support, it must make whatever enquiries it thinks is necessary to decide whether any action should be taken to protect the adult. (Care Act 2014, section 42) Councils have the legal power to charge for care. If they do so, they must carry out an assessment to determine how much the person should pay (a financial assessment). Councils are entitled to take into account a person’s income as well as their savings. For people in residential care, councils must leave them with a weekly personal allowance which is just under £25.
The Care and Support (Charging and Assessment of Resources) Regulations 2014) (the 2014 Charging Regulations) set out how a council is to financially assess adults requiring care and support. They say: If a person needing care and support at home has capital over £23,250 (known as ‘the upper capital limit or threshold’) a council may treat them as being able to afford the full cost of their care. (Regulation 12(2)) Where an adult and one or more other persons jointly own assets except land, each person is treated as if they were entitled to an equal share, unless the council is satisfied that the adult is entitled to a lesser or greater share. (Regulation 24) What happened Mrs X has power of attorney (POA) to manage Mr X’s finances and make decisions about his health and welfare. Mr X has dementia.
Mr X went into hospital in December 2021. From hospital, Mr X went into temporary care in a care home. Case records indicate Mrs X agreed to the placement initially. As he had savings over £23,250, Mr X was a self-funder and so the Council did not arrange his care.
In March 2022, an officer from the Council’s access team spoke to Mrs X. The officer made referrals to winter warmth (for support around heating the home) and other welfare services.
In April, an officer from the access team visited Mrs X and noted she was stressed about finances. The officer looked at Mrs X’s income and outgoing expenses and calculated her income should cover her expenses. Mrs X said she did not need further visits around her wellbeing.
In April a social worker assessed Mr X’s mental capacity to make decisions about his long-term care given his savings were approaching the threshold. The papers noted concerns about Mrs X not wanting to pay for his care – he was a self-funder because of his savings. The outcome of the mental capacity assessment was Mr X lacked capacity. The social worker noted Mrs X agreed Mr X should stay at the care home. Mr X could not express a view because of his dementia.
The records indicate Mrs X changed her mind about the care home placement once she realised Mr X would have to pay a contribution/charge. After further discussion and a best interests meeting, Mrs X changed her view again and agreed to the placement becoming permanent.
Also in April, Mrs X told an officer Mr X was taken to the care home without her being told. She said he only went into hospital because he wasn’t eating. Mrs X said she was concerned about not having access to Mr X’s savings account due to problems with the bank and said this meant she had not been able to pay his care fees.
In May, a welfare rights officer visited Mrs X. They advised Mrs X she would not be entitled to any means-tested benefits because of the value of savings in her own name. The welfare benefits officer also went through Mrs X’s current needs to see if she may be eligible for more disability benefits. The welfare benefits officer’s advice was Mrs X may be entitled to a higher rate of one benefit, but there was not a strong case and Mrs X said she could not cope with the stress of a review of her claim.
The Council opened a safeguarding enquiry because of concerns about how Mrs X was dealing with Mr X’s finances. Mrs X was saying on the one hand that she was stressed and couldn’t manage paperwork and on the other that she was managing her role as POA fine. There were also concerns about Mrs X saying she should be entitled to all Mr X’s income and that she would take him home if he did not get a free placement. Mrs X had been informed that the Council intended to report its concerns to the Office of the Public Guardian (which is responsible for monitoring attorneys) as council officers felt she was not acting appropriately.
The case records show an officer offered Mrs X a care needs assessment for herself in May, but she declined, saying she preferred to make her own arrangements. The case records also show the Council liaised with the Office of the Public Guardian (OPG) because of concerns about Mrs X’s willingness to pay Mr X’s care fees. It was noted she had refused to sign the contract for Mr X’s care and the OPG might recommend an application to court to revoke the POA.
In May, there was a best interests meeting. This noted Mrs X had previously agreed to Mr X’s permanent placement in the care home but had changed her mind when she found out about the charge. Mrs X now wanted Mr X’s care to be free or for him to return home. The outcome of the meeting was Mrs X and all professionals working with Mr X agreed it was in his best interests to remain in the care home, but Mrs X continued to dispute the financial assessment as she felt she should be able to keep all Mr X’s private pension.
The Council ended the safeguarding enquiry because Mrs X had paid outstanding care fees and so the risk was reduced. The OPG ended their involvement as there were no current concerns.
The Council took over funding responsibility for Mr X’s care from June because Mr X’s savings had fallen to the threshold. The finance team wrote to Mrs X setting out how his charge had been calculated. The financial assessment breakdown explained the Council had included Mr X’s benefits and half his private pension and income from his capital.
The Council’s response to Mrs X’s complaint said: A welfare and benefits officer visited her to check her entitlement to benefits. She had savings in her own name that meant she was not entitled to any means-tested benefits. She had single person’s discount on council tax.
She might be entitled to a higher rate of disability benefit and the officer would help her with this Mr X was initially a self-funder because he had savings. She had cleared the debt owed to the care home using Mr X’s savings The social worker carried out a mental capacity assessment and there was a best interests decision which she took part in. The outcome was Mr X should remain in care. There were concerns about Mrs X having a POA because she felt she was entitled to Mr X’s money and he should not have to pay for his care. The Council involved an advocate for Mr X The financial assessment enabled her to keep half Mr X’s state pension to cover property-related bills.
The Council had liaised with the OPG. She needed to ensure Mr X had his personal allowance. The Council would continue to monitor the situation but would not take any action at present.
The Council would be willing to assess her care needs to see if she qualified for funding for care in her own right. She had declined an assessment.
A finance officer spoke with Mrs X at the end of June and explained: Mr X’s charge was higher for the first four weeks of his stay because he was getting attendance allowance which then stopped She was entitled to half his private pension £22842 was the figure for Mr X’s capital. If she wanted the finance team to look into this further, she needed to provide bank statements. Their joint bank account needed to be included The Council told me Mrs X received an investment of £32,000 which was in Mr X’s name and she used this to pay off the arrears of care fees to 31 May (which was just over £14400). The Council went on to say Mrs and Mrs X also have a joint account, 50% of which was £2600. Mr X’s savings fell to the threshold on 9 June, but for simplicity the Council agreed to find Mr X’s care from 1 June.
Was there fault?
Mr X’s placement in a care home The records indicate Mr X had savings over £23,250 when he first went into the care home and so was a self-funder with Mrs X able make the arrangements with the care home. There is no evidence the Council placed Mr X and the arrangement would have been between Mrs X and the care home. There are no records to indicate Mrs X objected at the time. There was no fault by the Council.
The evidence indicates Mrs X objected to the placement once she discovered care was not free. The Council responded to her objections by involving her in a best interests meeting where a consensus was reached by all that Mr X should stay in the care home permanently. I consider this was in line with the principles of the Mental Capacity Act as I have set out in paragraphs six to eight, so there was no fault.
The Council accused Mrs X of financial abuse The records show comments from Mrs X that she was having difficulty managing the financial paperwork and having problems accessing Mr X’s savings and so arrears of care fees built up. The records also indicate she expressed unhappiness about having to pay for Mr X’s care. So the Council started enquiries under section 42 of the Care Act 2014. My view is there was no fault because councils must take steps to investigate concerns a vulnerable adult may be experiencing financial abuse. The Council was not saying there was financial abuse, just that there was enough evidence to indicate concern about how Mrs X was managing her husband’s finances. There was no fault in liaising with the OPG because Section 42 of the Care Act 2014 allowed the Council to take action to protect an adult at risk of abuse.
Mrs X does not have enough money once she has paid his care costs.
Residential care is chargeable according to rules set out in paragraphs 10 and 11. There was no fault in the Council charging for Mr X’s placement once he became eligible for council funding. I am satisfied the financial assessment was done in line with the charging rules I have set out earlier in this statement. The rules allow the Council to take into account Mr X’s income and capital (halving joint funds) and leaving him with a personal allowance. I accept Mrs X may now have less income and capital than when Mr X was living at home, but this is the way the charging system works and is not fault. I am also satisfied the Council has offered to assist Mrs X by advising her of benefit and other entitlements and offering a social care assessment for her. There is no fault.
Final decision
There is no fault in the way the Council dealt with Mr X when he went into a care home, in the financial assessment for his care charge or in the way it dealt with concerns about financial abuse. The Council acted in line with charging rules and with its responsibilities in the Care Act 2014 and Mental Capacity Act 2005 to safeguard Mr X.
I completed the investigation.
Investigator's decision on behalf of the Ombudsman