Summary: Mr B complained about the Council’s delay in completing his father’s a financial assessment and an assessment of his father’s needs for care and support. We have found fault and the Council has agreed to apologise, pay £150 and remind finance officer to fully consider the evidence.

The complaint

1. Mr B complains on behalf of his father, Mr D, who has sadly passed away. He says there were delays in Mr D’s financial assessment and the Council delayed completing an assessment of Mr D’s needs for care and support.

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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 an injustice, 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 discussed the complaint with Mr B and I have considered the information that he and the Council have sent and the relevant law, guidance and policies.

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What I found

Law, guidance and policies

5. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge. The Council also has its own policies.

Needs assessment and care plan

6. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances.

Financial assessment

7. Section 17 says councils must carry out a financial assessment if they decide to charge for the care and support. This will assess the person’s capital and income.

Threshold for council funding

8. I will only set out the regulations and Council policy insofar as they apply to Mr D’s complaint.
9. The upper capital limit to be eligible for council funding is set at £23,250 and the lower limit at £14,250. A person with assets above the upper capital limit will have to pay for their own care. Those with capital between the upper and the lower limit will make a contribution known as ‘tariff income’ from their capital.

Personal expenses allowance

10. If a person’s stay in a care home is funded by the Council, then they are expected to contribute most of their income, excluding their earnings, towards the cost of their care and support. However, a local authority must leave the person with a specified amount of their own income so that the person has money to spend on personal items such as clothes and other items that are not part of their care. This is known as the personal expenses allowance (PEA). 

Deprivation of assets

11. Deprivation of assets means where a person has intentionally deprived or decreased their overall assets to reduce the amount they are charged towards their care. This can be a deprivation of capital or of income.
12. There may be many reasons for a person depriving themselves of an asset. A local authority should therefore consider the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred:
• whether avoiding the care and support charge was a significant motivation in the timing of the disposal of the asset; at the point the capital was disposed of could the person have a reasonable expectation of the need for care and support?
• did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?

Notional capital or income

13. The CASS Guidance sets out what a Council should do when a deprivation of assets has taken place.
14. In some circumstances a person may be treated as possessing a capital asset even where they do not actually possess it. This is called notional capital.
15. The CASS Guidance says: ‘Where a person has been assessed as having notional capital, the value of this must be reduced over time. The rule is that the value of notional capital must be reduced weekly by the difference between the weekly rate the person is paying for their care and the weekly rate they would have paid if notional capital did not apply.’

12-week disregard

16. An important aim of the charging framework is to prevent people being forced to sell their home at a time of crisis. The regulations say that a local authority should disregard the value of a person’s main or only home for 12 weeks in its financial assessment when a person first enter a care home as a permanent resident.

What happened

17. I have summarised the facts and the complaint insofar as they are relevant to the complaint that I am investigating.
18. Mr D was an older man who moved into the care home in October 2020. Mr D was previously living in an assisted living property which he and his wife had bought at a 50% share. Mr D sold the 50% share in the property on 19 November 2021. This meant he had capital over the threshold of £23,250 and self-funded his stay at a rate of £1,019 a week.
19. Mr B contacted the Council on 14 December 2021 as Mr D’s capital was near the £23,250 threshold and the Council would have to take over the funding. The Council’s finance officer sent him the financial assessment form to fill in and said he should provide bank statements from January 2021 onwards.
20. The officer chased Mr B on 13 January 2022 as he had not received the form yet.
21. Mr B returned the forms and the bank statements on 1 March 2022. Mr B stated on the financial assessment form that the balance in Mr D’s account was £25,339. However, the bank statement showed that Mr D’s account held £34,022 on 28 February 2022. I presume Mr B deducted the Home’s outstanding invoices (which had not been paid yet) from the amount in the bank. There is no space on the form to add outstanding debts or loan repayments, but there is a section for additional information, which Mr B did not fill in.
22. The finance officer emailed Mr B on 7 March 2022 and questioned a transfer of £11,220 from Mr D to Mr B which took place on 3 December 2021. The officer also said there was an unpaid debt to the Council of £3,571 which covered the contribution Mr D had to pay during the 12-week disregard period from 17 September 2020 to 9 December 2020.
23. On 15 June 2022, Mr B emailed the Council to explain the transfer of £11,220. He said that, in 2014, he lent his parents £13,000 to enable them to buy the 50% share in their supported housing property. His parents had already repaid him part of that amount but still owed him £11,220. Once the property was sold in November 2021, Mr D was able to repay Mr B the £11,220 which he still owed him.
24. The Council emailed Mr B on 29 June 2022 and asked for evidence of the loan. Mr B said there was no formal loan agreement as the loan was between family members. But he would try to obtain the bank statements from 2014 which should show the transfer from his account to his parents’ account.
25. Mr B emailed the Council on 26 July 2022 and said he had requested the bank statements from 2014. He said Mr D had now completely run out of funds so he could no longer pay the Home. He said there had been no assessment of Mr D’s medical needs and asked whether a social worker had been allocated. The finance officer replied a few days later and said the Council would progress the financial assessment as soon as Mr B had sent the bank statements.
26. Mr B emailed the Council on 5 August 2022 and provided the bank statements from 2014. He said there had still not been any review/assessment of Mr D even though they had asked for this in February 2022. He wanted to raise this as a concern.
27. Mr B sent an email on 11 August 2022 and said: ‘I have chased social workers for [Mr D’s] review and I am informed that they cannot do anything until the financial assessment is complete…’ He said Mr D would be homeless from September as he was unable to pay the Home’s fees.
28. The finance officer completed the financial assessment on 12 August 2022 and said Mr D would be eligible for Council funding from 21 June 2022 and would pay a weekly contribution from that date. The officer said she had informed the social work team of the eligibility date and they would be in contact to discuss the placement.
29. Mr B queried the calculation as he said Mr D reached the £23,220 threshold around February 2022.
30. Sadly Mr D died on 4 September 2022.
31. The Council emailed Mr B on 16 September 2022 and sent him its calculation of the date when Mr D reached the £23,250 threshold. The Council attached its ‘self-funding pick-up calculation’. This calculation was based on the balance of the capital in the bank statement of 28 February 2022 and was done on the following basis:
• Mr D would use the balance of his capital (£34,022 - £23,250 = £10,773 ) to pay for his fees.
• Mr D would use his entire income (except for the personal expenses allowance (PEA) and PC disregard – total of £30.65) to pay for the Home’s fees.
32. The officer said Mr B should send in the bank statements from February to June 2022 and the Council would review the calculation.
33. On 7 November 2022 the Council said there was still the outstanding debt for the client contribution between 17 September and 9 December 2020 (£3,571). The Council could take that into account but the debt would have to be paid before it could do so.
34. On 18 November 2022 Mr B sent Mr D’s bank statements and the Home’s invoices to the Council. He attached a spreadsheet which showed the actual amounts in Mr D’s bank account, but also the outstanding unpaid invoices Mr D had not paid yet. For example, in February 2022, Mr D had £34,022 in his bank account, but there were unpaid invoices totalling £8,628 so, in reality, he only had £25,394.
35. On 15 December 2022, the Council revised its calculation and said Mr D became eligible for Council funding on 9 May 2022. It deducted an invoice of £4,076 for February 2022 which meant the capital was lower. Mr B continued to query this as he said he had provided evidence which showed that Mr D ran out of funding earlier, in February/March 2022.
36. Mr B complained to the Council on 20 January 2023. He said he had been chasing a financial assessment for Mr D for over 12 months. He said the stress of running out of funds and the fear of being evicted had contributed to Mr D’s death. He said he was now being chased by the Home and the Council for outstanding fees.
37. On 27 January 2023 the Council checked the calculation again. It noted that Mr B’s spreadsheet showed there were unpaid invoices totalling £8,628 in February 2022, but it had worked on the assumption that all the invoices had been paid except for the invoice of February 2022.
38. Mr B replied on 7 February 2023 and said the £8,628 related to the invoices for January and February 2022 which had not been paid. The Council agreed on 22 February 2022 to include both invoices in its assessment which meant Mr D reached the threshold on 22 March 2022. The officer added that the outstanding debt of £3,571 (the contribution during the 12-week disregard) had not been paid.
39. The officer spoke to Mr B and he agreed to pay the £3,571 which then led to the threshold being reached on 13 February 2022. Mr B said he was happy to proceed on that basis and the Council confirmed its revised financial assessment on 6 March 2022.
40. The Council responded to Mr B’s complaint on 13 April 2023 and admitted that the assessment process had ‘taken far too long’ and said there had been ‘delays on both sides’.
41. It said: ‘Ongoing emails exchanges has meant that information has been collated in small pieces, it has become rather messy to try and piece all the different information together. A conversation rather than email exchanges to explain what was needed and why, would have most likely provided a clearer process and quicker outcome. Therefore, I partially uphold you complaint as I believe that a better process and service could have been applied..’ However, it said the financial assessments were correct, based on the information the Council had at the time.
42. Mr B made a further complaint on 12 May 2023 as he said, because of the delays in the financial assessment, Mr D had to self-fund at a higher rate so was financially penalised. It also meant that Mr D’s social work assessment was delayed as he was told the social worker would not assess him until the financial assessment had been completed.
43. The Council responded on 24 May 2023 and said that a financial assessment should not preclude the appointment of a social worker.

Further information

44. I spoke to Mr B before I started the investigation. Mr B said he agreed with the final financial assessment that the Council carried out. However, the injustice related to the months of stress he and Mr D suffered in resolving the issues of the financial assessment. He said Mr D was particularly worried that he would have to move out of the Home. The Home had allowed him to keep his little dog and he was afraid he would have to be separated from his dog.
45. Mr B said the social worker met Mr D before he died. The social worker explained that the Home’s rate was higher than the rate it would pay, so there may be a top-up fee to be paid or he may have to move. However, the social worker appeared to accept that Mr D needed his dog and could not be expected to move.
46. He said the Council had reimbursed the Home for the full rate, including the top-up fee, after he made his complaint in May 2023 so his complaint that Mr D was self-funding at a higher rate had been resolved. He said the Home reimbursed Mr D’s estate for the correct amount.
47. The Council made the following comments as part of its reply to the Ombudsman. The Council said the social worker carried out an assessment of Mr D’s needs on 31 August 2022 but the assessment and care plan were never sent to Mr D.

Analysis

Financial assessment and delay

48. Mr B contacted the Council on 9 December 2021 and the financial assessment form was sent to him on 14 December 2021. Mr B returned the completed form on 1 March 2022. I find no fault in the Council’s actions at this stage. The Council could not start to carry out the financial assessment until it received the relevant information from Mr B.
49. The Council then queried the payment from Mr D to Mr B of 11,220 and asked Mr B for more information about this payment. I find no fault in that respect. Most councils would have questioned this payment as it was a lump sum payment made from Mr D to Mr B after he had moved to the Home. The Council had to ensure that no deprivation of assets had taken place.
50. On 5 August 2022, Mr B then provided the necessary evidence to show that the payment was not a deprivation of assets. So, I find no fault in the Council’s actions in terms of delay up to this point. The Council could not complete its assessment without this information.
51. The Council completed the financial assessment on 12 August 2022. The Council did not ask any further questions from Mr B. It did not question the capital figure Mr B put in the financial assessment and the fact that this figure was different from the balance in the bank account. It ignored the figure in the financial assessment and went ahead with its assessment based on the balance in the bank account and applied the self-funding pick up calculation.
52. It would have been good practice for the Council to have asked Mr B for updated information at this stage. In terms of the self-funding pick-up calculation, I appreciate that the Council can check how the capital and the income reduce over time. However, the Council should look at the actual expenditure to decide when a person reaches the £23,250 threshold. For example, the self-funding pick up calculation was done on the basis that Mr D spent £30 a week from his income. But the Council could not expect Mr D to restrict his expenditure to that amount. If Mr D provided evidence that he spent more than £30 a week and the expenditure was not a deliberate deprivation of income, then the Council had to accept the actual expenditure.
53. The Council asked for evidence of the actual expenditure in September 2022 after Mr B questioned the financial assessment.
54. Mr B provided the up-to-date bank statements and the invoices from the Home on 18 November 2022. I am of the view that there was fault by the Council from this point onwards and this contributed to some of the unnecessary delay.
55. I agree with the Council’s complaint response that it should have had a conversation with Mr B at this stage to properly conduct the assessment. The Council had all the documentary evidence it needed, but it took another four months and three financial assessments before the Council finally deducted the two invoices and the outstanding debt which then led the Council agreeing that the threshold of £23,250 was met in February 2022 which was what Mr B had been saying from the outset.
56. And there was fault in the Council’s failure to carry out an assessment of Mr D’s needs for care and support as soon as he asked for it. An assessment of needs should be provided if a person appears to require care and support so the threshold for an assessment of needs is low. And the Council had to provide the assessment regardless of the financial circumstances so the Council was wrong in its initial advice to Mr B that the social worker had to wait for the financial assessment.

Injustice

57. Mr B and Mr D have not suffered a direct financial injustice as a result of the fault as the Council, in the end, agreed with Mr B that Mr D’s capital reached the threshold in February 2023 and it reimbursed the Home (which then reimbursed the estate) with the appropriate amount.
58. However, Mr B has suffered an injustice in terms of stress by the delay in the financial assessment, particularly after November 2022.
59. The delay in the social worker’s needs assessment caused further distress to Mr B and Mr D. If the assessment had been carried out earlier, Mr D may have received the assurance that he was seeking that he would not have to move out.
60. Unfortunately, as Mr D has died, we cannot remedy any injustice he has suffered.
61. In cases such as this one, where there is no direct financial injustice, the Ombudsman can recommend a small symbolic remedy to reflect the distress suffered.

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Agreed action

62. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise in writing to Mr B for the fault.
• Pay Mr B £150 to reflect the distress he has suffered.
• Remind finance officers to fully consider the evidence they have received when carrying out the assessment.
63. The Council should provide us with evidence that it has complied with the above actions.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman