The Ombudsman's final decision
Summary: We have found fault with the Council for not inviting Mrs X’s mother (Mrs Y) for a financial assessment when it became aware that her capital may have fallen below the upper threshold for care contributions. We have not identified any injustice caused by this fault because on balance, the outcome would have been the same had the assessment taken place.
The complaint
Mrs X complained the Council did not provide her family with adequate advice regarding her late mother’s (Mrs Y’s) care fees. She said her mother wanted to receive care at home and the Council’s poor advice meant that the family could not afford to pay.
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. 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) 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).
What I have and have not investigated I have exercised my discretion and have considered related events that took place earlier than 12 months before Mrs X brought her complaint to us. This is because the Council’s historic decisions and actions could have impacted on its actions in 2022 that Mrs X is complaining about.
How I considered this complaint
I have considered Mrs X’s complaint and have spoken to her about it.
I have also considered the Council’s response to Mrs X and to my enquiries.
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
Legislation and guidance The Care Act 2014 sets out the approach to charging and financial assessment.
Care and support assessment Where it appears to a local authority that an adult may have needs for care and support, the authority must assess: whether the adult does have needs for care and support, and if the adult does, what those needs are.
Where a local authority is satisfied on the basis of a needs or carer’s assessment that an adult has needs for care and support or that a carer has needs for support, it must determine whether any of the needs meet the eligibility criteria.
Financial assessment The purpose of a financial assessment is to determine whether a person or carer is able to fully fund their own Care and Support and, if not, how much they should contribute towards the cost.
A standard financial assessment involves the assessor gathering comprehensive information about every element of capital and income before making a determination about the amount someone can afford to pay towards the cost of Care and Support services.
Examples of when a standard assessment will be required include: When the person is not clear about their level of resource; Where the Local Authority has cause to question the level of resource being declared; and Where the levels of capital resource falls somewhere in between the minimum and maximum financial limits, meaning the level of financial support that the Local Authority can provide cannot be accurately determined without a full assessment.
Non-discretionary property disregard means where the person is receiving care in a setting other than a care home (e.g., in their own home) the value of their main or only home must be disregarded.
Capital limits The capital limits, specified in regulations issued under the Care Act 2014, set the levels of capital (excluding any capital that has been disregarded) that a person can have while qualifying for financial support from their local authority. For people receiving care other than as a permanent resident in a care home, local authorities have discretion to set higher capital limits if they wish.
When charging for non-residential care, a person’s capital should not fall below income support. The upper threshold remains £23,250, the lower threshold £14,250. Capital that falls between the two figures should be assessed as notional e.g. £1 per £250 per week.
A person with assets above the upper capital limit is responsible for the full cost of their care in a care home. A person with assets between the capital limits will pay what they can afford from their income, plus a means-tested contribution from their assets (calculated as £1 per week for every £250 of capital between the capital limits). A person with assets below the lower capital limit will pay only what they can afford from their income.
Support to people at home might include: personal care, medication, access to the community, shopping or household tasks such as laundry, cleaning and meal preparation. These can be provided in daily visits or by a live-in carer, either through an agency or a personal assistant (PA) paid for by a direct payment.
What happened
Background
Mrs X first contacted the Council in 2017 about her mother, Mrs Y who had dementia and had fallen at home. The Council assessed Mrs Y’s needs and confirmed with Mrs X that her mother’s capital was over the upper threshold for care contributions.
During 2018, the Council reviewed Mrs Y’s needs and provided various aids such as a bed lever and commode. The Council discussed care needs with Mrs X and she decided to employ a private carer. The Council advised her to use Mrs Y’s attendance allowance to fund the care.
Mrs X submitted a financial assessment (FA) form to the Council. The Council decided as Mrs Y was not receiving care arranged or paid for by the Council, she did not need a FA.
In 2019, Mrs X released equity from Mrs Y’s property. This amounted to £223,555.42.
By 2020, Mrs Y was still living in her home, she had several medical issues and mobility problems. Mrs Y’s home had several adaptations and she used aids provided by the Council. A privately arranged and funded carer visited Mrs Y twice a day to assist with personal care.
At this time, Mrs X told the Council that her mother’s capital was below the upper threshold for care contributions.
In 2021, the Council assessed Mrs Y for a wheelchair ramp and a recliner chair. At this stage, Mrs Y had a 24 hour live-in carer. The family were paying for this privately. Mrs X informed the Council again that her mother’s capital was below the upper threshold.
Funding of care In October 2022, Mrs X contacted the Council. She said that her mother, Mrs Y was receiving 24 hour care in her own home that the family had arranged for and paid for privately.
She said that she had been told by someone at the Council that the value of the house would be considered when calculating what contribution Mrs Y needed to make towards her care. Therefore, Mrs X said, she released equity from Mrs Y’s house to pay for the care. She said now that equity was spent, her mother had no means of paying for care.
The Council took immediate action and contacted Mrs X to arrange for a care needs assessment and a financial assessment for Mrs Y. The following week, the Council visited Mrs Y. Mrs X said she was happy for her mother to be reassessed but would not be willing to change the care package she was receiving. Mrs Y was very clear she wanted to remain in her own home. The Council concluded that Mrs Y had eligible care and support needs and that her capital was below the upper threshold of £23,250.
The Council told Mrs X that Mrs Y’s case would be referred to the finance team who would carry out a FA. The Council explained that because Mrs Y would be receiving care at home, her house would not be considered as part of her assets. It went on to say that if/when Mrs Y moved into a care home placement, the value of the house would be considered when calculating care contributions. The Council said Mrs X said that her mother would never move into a care home and therefore she did not need to hear the information about property disregard and delayed payments.
The Council discussed with Mrs X the care options for her mother. Mrs X argued that her mother needed 24 hour care and could not be left alone. The Council funding panel agreed direct payments to cover: A live-in carer, plus 2x 40 minute daily calls to assist with transfers.
This totalled £1054.88 per week. The Council said it was still considering Mrs X’s request to receive back pay for the historic care costs that she believed the Council should have paid at the time.
In November 2022, the Council’s finance team contacted Mrs X and sent her a FA form to complete on her mother’s behalf. Over the following month, Mrs X contacted the Council asking for clarification on several issues before she completed the form. Mrs X submitted the form in December 2022. In early January 2023, Mrs X chased the Council for the outcome of the FA and the historic fees issue.
The Council apologised for the delay in responding to Mrs X. It then raised two points: It acknowledged that Mrs X said she had released equity from her mother’s property to pay for a live-in carer on the basis of advice from the Council. It explained that there was no record of this advice in Mrs Y’s case notes. The Council asked Mrs X for details such as the name of the individual.
The Council requested information including the equity agreement, a breakdown of the funds in the form of bank statements and invoices from the live-in carer.
Mrs X informed the Council in February 2023 that her mother, Mrs Y, had passed away. She asked that the Council deal with the outstanding matters including the breakdown of direct payments to date, the finalisation of payment and the historic claim quickly.
During February and March 2023, Mrs X sent the Council care agency invoices covering the period from 2019-present. The Council pressed for further invoices/receipts to establish how the capital released from Mrs Y’s property was spent. The Council explained to Mrs X that it was looking for evidence of expenditure to substantiate all the capital that was part of the equity release.
In April 2023, Mrs X complained to the Council.
In its response, the Council explained that Mrs Y’s capital (including the released equity from her property) would have deemed her over the upper threshold in terms of a financial assessment. Therefore, the Council would not have funded her care in the past and this is why it will not backdate the care contributions agreed since October 2022.
Mrs X brought her complaint to the Ombudsman.
My findings
Mrs X said following advice from the Council, she released equity from her mother’s property to pay for care fees even though she was receiving care in her own home. Neither the Council nor Mrs X has been able to find any evidence of this alleged advice. I have not investigated this matter any further.
The Council was aware that Mrs X was receiving care, albeit privately, from 2018. Although initially the Council believed Mrs Y’s capital was over the upper threshold, by 2018, Mrs X was unsure how much money was left. She submitted a financial assessment form to the Council. However, the Council declined to assess Mrs Y as her care was not arranged by the Council and the family was paying the care fees.
From the evidence I have seen, Mrs X informed the Council again in 2020 and 2021 that her mother’s savings were below the upper threshold. Between 2018 and 2021, the Council should have invited Mrs Y for a financial assessment. This was fault.
I have not identified any tangible injustice caused to Mrs X or Mrs Y by the fault. This is because, on balance, the £223,555.42 equity release would have been treated as notional capital in a financial assessment. This would be well above the upper threshold and Mrs Y would not have been eligible to have her care fees paid by the Council.
I have found no fault with the Council’s decision to not backdate the care contributions it agreed in 2022. I am satisfied the Council properly considered all the information provided by Mrs X and from its own records. If I am satisfied the Council reached the decision without fault, I cannot question the decision itself.
Final decision
I have completed my investigation. I have found fault with the Council for failing to carry out a financial assessment for Mrs X’s mother, Mrs Y when it was made aware that her capital was below the capital limit threshold.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman