Summary: Mr P complained the Council failed to take his mother, Mrs R’s, finances into account when completing a financial assessment for his father, Mr R. He also complained the Council’s complaint handling has been poor. We have found the Council at fault for not considering Mr R’s continuing property costs and for the delay in providing Mr P with the outcome of his appeal.

The complaint

1. Mr P complained the Council failed to take his mother, Mrs R’s finances into account when calculating weekly care contributions for his father, Mr R. This has left Mrs R with a weekly shortfall, leaving Mrs R in financial hardship. Mr P also complains the Council’s complaint handling has been poor. This has caused frustration, anger and significant worry for Mrs R and her family. Mr P would like the Council to recalculate Mr R’s weekly care contribution with Mrs R’s financial needs considered.

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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. As part of the investigation I have:
• Considered the complaint and the documents provided by Mr P;
• Made enquiries of the Council and considered its response;
• Spoken to Mr P.
• Provided Mr P and the Council an opportunity to comment on my draft decision. I considered any comments before making a final decision. What I found

Legal and Administrative Background

5. The Care Act 2014 (sections 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. 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.
6. When a Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
7. Part 8.8 of the Care and Support Act Statutory Guidance states the local authority has no power to assess couples or civil partners according to their joint resources. Each person must therefore be treated individually.
8. Annex C, parts 14-20 of the Care and Support Statutory guidance set out how pensions should be considered during a financial assessment. Parts 14-18 state income from some benefits must be taken into account when considering what a person can afford to pay towards their care costs. This includes the persons state pension. Section 20 details where a person is in a care home and has a spouse who is not living in the same care home and is paying half of the value of their occupational or personal pension to their spouse, the local authority must disregard this payment.
9. Annex C of the Care and Support Statutory guidance sets out the local authority must leave a person with a minimum amount of income. This is known as the Personal Expenses Allowance (PEA) and the amount is set out in regulations and updates. Anything above this may be taken into account in determining charges.
10. Part 46(d) of the Care and Support Statutory Guidance states there may be circumstances where it would not be appropriate for the local authority to leave a person only with the personal expenses allowance after charges. For example, where a person’s property has been disregarded the local authority should consider whether the PEA is sufficient to enable the person to meet any resultant costs. Allowances should be made for fixed payments (like mortgages, rent and council tax), building insurance, utility costs (gas, electricity and water, including basic heating during the winter) and reasonable property maintenance costs.

Council’s Adult Social Care Appeals and Complaints Policy

11. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. The council should include in its complaint response:
• how it considered the complaint;
• the conclusions reached about the complaint, including any required remedy; and
• whether it is satisfied all necessary action has been or will be taken by the organisations involved; and
• details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.
12. Regulations do not say how long a complaint investigation should take. But they do say an expected timescale must be explained at the start, usually in discussion with the complainant. If the complainant does not want to discuss this, the responsible body must decide the timescales and confirm them to the complainant in writing. The body must keep the complainant informed of progress during the investigation ‘as far as reasonably practicable’. If the responsible body has not provided its response after six months (or after a longer period agreed with the complainant), it must write to the complainant to explain why. (Regs 13 and 14, Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)
13. The Council has an adult social care complaints and representation policy which sets out its complaints and appeal processes for adult social care. This policy states only certain aspects of adult social care can be appealed, these include:
• An eligibility decision.
• The decision not to approve a support plan.
• The decision not to approve a personal budget.
14. The complaints process set out in this policy sets out that it will respond to stage one and two statutory complaints within 20 working days, or more if the case is complex. Where a response to a complaint is delayed, the complainant will be kept fully informed of progress.

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Key Events

15. Mr R moved to a care home for long-term residential care in October 2022. The Council issued Mr R’s financial assessment report in January 2023. For this assessment the Council disregarded Mr and Mrs R’s savings which were below the financial limit, and Mr R’s property as Mrs R was still living there. It also disregarded 50% of Mr R’s private pension and allowed Mr R a Personal Expenses Allowance (PEA) of £25.65, which was the correct rate for 2022/2023. The letter advised Mr P to contact the financial assessment officer with any queries or should he wish to appeal.
16. Mr P appealed the financial assessment in January 2023, 5 days after receiving the financial assessment report. As part of the appeal, Mr P provided a breakdown of the continuing property and living costs for Mr and Mrs R’s home.
17. The Council does have a policy in place for appeals against financial assessments, however it is unclear what process the Council followed in considering Mr P’s appeal.
18. The Council completed a planned review of Mr R’s financial assessment in April 2023. It applied the same disregards as in the first assessment, however the weekly contributions increased due to an increase in Mr R’s pension.
19. In its response to our enquiries the Council has advised it did consider Mr R’s continuing property costs during the financial assessment. It determined there were no mortgage or insurance costs to consider, therefore it did not need to increase Mr R’s PEA. The Council also advised it has disregarded Mr R’s age related fuel allowances which he can use towards utility costs.
20. The Council has signposted the family to specific benefits Mrs R was eligible to claim. This has resulted in an increase to Mrs R’s income.
21. Mr P contacted the Council on three occasions between February and July to seek an update on the appeal he sent in January. The Council did not provide Mr P with the outcome of this appeal until he sought an update in July 2023. This was over 24 weeks after the Council received the appeal. The response provided to Mr P does not detail how the Council considered the appeal or why it was refused.
22. As part of the Ombudsman’s investigation the Council agreed to pause any legal proceedings about Mr R’s care contributions. However, during the investigation Mrs R received a legal action notice about Mr R’s care contributions.

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My Consideration

23. There is no evidence the Council has considered the information provided by Mr P in January which detailed the continuing insurance and property costs for Mr and Mrs R’s home. This has caused Mr and Mrs R an injustice as it is not certain whether the Council has properly assessed the affordability of the contribution. It may be that Mr R has paid a contribution that was too high although we cannot say for certain without a further financial assessment. It is not for the Ombudsman to carry out the financial assessment or to say how it should be carried out. However, the Council should be able to show it has considered all of Mr R’s continuing property costs.
24. The Council delayed in providing Mr P with the outcome of the appeal for 24 weeks. Mr P had to repeatedly seek the outcome from the Council. This is fault which caused Mr P and Mrs R uncertainty.
25. The letter the Council sent to Mr P in January 2023 alongside the financial assessment offers a right of appeal against the financial assessment. The Council’s financial assessment appeal process is set out in its Charging Policy: Adults Non Residential Care however this policy was not followed for Mr P’s appeal. This is fault but has not caused Mr P and Mrs R any additional injustice.
26. The Council issued a reminder notice during the Ombudsman investigation after agreeing to hold enforcement action until the outcome of the investigation. This is fault which caused Mrs R avoidable distress.

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Agreed actions

27. Within one month of the final decision the Council should:
• Carry out a revised financial assessment and consider Mr R’s continuing property charges. If this re-assessment results in a decrease of the contribution, the Council should backdate this to January 2023.
• Pay Mrs R £200 to acknowledge the uncertainty and distress caused by the faults identified.
• Provide a written apology to Mr P and Mrs R following the LGO’s effective apology guidance. Guidance on making an effective apology can be found here Guidance on remedies - Local Government and Social Care Ombudsman.

28. Within three months of the final decision the Council should:
• Review its process for dealing with disagreements about financial assessment outcomes to make any changes needed.
29. Within four months of the final decision the Council should:
• Inform adult social care staff of the process for dealing with financial assessment disagreements including how they should inform service users of the process available.
30. The Council should provide us with evidence it has complied with the above actions.

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Final decision

I have completed my investigation and found fault by the Council. The Council has agreed to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman