Summary: Mr X complained about the way the Council dealt with the financial assessment of his family member, Mrs Y. Mr X said this caused him and his family distress. We did not find fault with the Council’s actions.

The complaint

1. Mr X complains on behalf of his mother-in-law, Mrs Y, about the way the Council dealt with her financial assessment. He says the Council:

• wrongly decided to include Mrs Y’s funeral plan in her financial assessment;
• failed to consider Mrs Y’s wishes and the reasons she needed a funeral plan and failed to use its discretion about this matter;
• failed to have a clear policy and explain funeral plans and assets during a financial assessment;
• wrongly asked for a copy of the full funeral plan, which included personal preferences and wishes that he and his family were not aware of;
• failed to provide a copy of its policy regarding funeral plans, when asked; and
• communicated poorly and unclearly with him.

2. Mr X says he has spent a lot of time trying to resolve this issue. He also says this has caused his wife’s mental health to decline further when the Council were already aware of her mental health issues. Mr X says this has also caused him distress and frustration.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)

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How I considered this complaint

6. I have considered the information Mr X and the Council provided.
7. Mr X and the Council had the opportunity to comment on my draft decision. I considered these comments before making a final decision.

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What I found

Legislation and guidance

Charging for permanent residential care

8. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. 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.
9. 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.
10. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only pay an assessed contribution towards their fees.

Care and Support Statutory Guidance (CSSG)

11. The Care and Support Statutory Guidance, issued under the Care Act 2014 provides comprehensive guidance to councils. Annex B, the “Treatment of Capital” details what capital can be disregarded by a Council in the financial assessment process.
12. This provides a comprehensive list of what can be disregarded, which does not include a funeral plan. A council therefore has discretion as to whether to include a funeral plan in a financial assessment.

What happened?

13. In April 2021, Mrs Y arranged a funeral plan. At this time, she was living in her own home and considered herself to have capacity to make financial decisions.
14. After this, Mrs Y moved to a residential care home which she paid for herself because her capital was above the upper capital limit.
15. At the beginning of May 2023, Mr X wrote to the Council to say that Mrs Y’s capital was now below the upper capital limit. He asked the Council to reassess her finances as he believed she met the threshold for council funded care.
16. In mid-May, the Council telephoned Mr X to say that as Mrs Y’s capital and funeral plan combined was above the upper capital limit, she was still not eligible for council funding. Mr X disagreed with the Council’s decision to include the funeral plan in Mrs Y’s financial assessment.
17. In mid-June, Mr X emailed the Council about this decision. He said that Mrs Y decided to arrange the funeral plan because her daughter (Mr X’s wife) has a severe mental health condition and so would not be able to fulfil her mother’s funeral requests.
18. Mr X also said the funeral plan provider had told him it holds the plan “in trust” to pay for a funeral. Mr X therefore said the Council should not consider the funeral plan as a deprivation of asset.
19. The Council asked Mr X to provide evidence the funeral plan was being held in trust on several occasions. Council records suggest that Mr X did not provide this specific evidence. The Council also asked Mr X to provide a copy of the funeral plan.
20. Council records from July shows the Council’s consideration of this matter. The Council documented that the list of disregards in the Care Act 2014 does not include funeral plans and so by default they are considered in a financial assessment as a capital asset.
21. These records show further consideration to the matter by a manager explaining that service users have £14,250 disregarded from a financial assessment, which could be used to pay for funeral costs. It said if it also disregarded funeral plans in addition, a service user with a funeral plan would be advantaged financially. The Council said this was neither fair nor equitable.
22. The Council also said that Mrs Y could cancel the funeral plan at any time, and the money (minus an admin fee) could then be returned to her.
23. At the beginning of August, the Council telephoned Mr X. The Council said it again asked Mr X to provide evidence the funeral plan was being held in trust, as none of the paperwork he had provided had shown this.
24. Three days later, Mr X emailed the Council with an extract of an email between him and the funeral plan provider. This stated, “the plan is held in (the providers name) trust to be used at time of need or upon cancellation”.
25. The Council responded to Mr X the following week. In this email the Council said:

• Annex B of the Care Act 2014, under “Treatment of Capital” details what capital can be disregarded by the Council as part of the financial assessment process.
• Funeral plans are not included in the extensive list of disregarded capital, and it is the Council’s position that the value of the plan is considered in the financial assessment, less an admin fee. This is because, funeral plans have a “cashing in” value, which is the total value of the plan, less an admin fee. This option allows the holder of the plan to decide later to cancel the plan and have the money refunded.
• Therefore, in line with the Care Act 2014 and the CSSG, the Council has included Mrs Y’s funeral plan in the financial assessment.
• If Mr X wished to provide supplementary information for the Council to review this decision he was able to.

26. At the beginning of September, Mr X emailed the Council again. He said:

• He had sent a full copy of the funeral plan to the Council.
• He had told the Council several times, the reasons for taking out the funeral plan, was because of his wife’s mental health issues and to prevent any undue anxiety and stress in the event of Mrs Y’s death.
• Mr X was unhappy that by providing a full copy of the funeral plan, the Council had access to Mrs Y’s personal wishes which he considered to be upsetting and unnecessary.

27. The Council responded to Mr X within a few days. It said:

• Its intention was not to upset Mr X and his family. The Council said Mr X had raised an important point and in future, it would ensure that it tells family members that any personal wishes written into a funeral plan can be redacted. The Council said it would only need sight of financial information within the funeral plan and not the personal information.
• The Council had checked with its funeral director who confirmed that this funeral plan can be cancelled at any time, and the money, refunded to Mrs Y, less an admin fee.
• In view of this, the Council would take this funeral plan into account as capital, minus the admin fee. The Council said this is in line with the Care Act 2014 and the CSSG.

28. Mr X continued to raise his dissatisfaction to the Council about its decision.
29. In response to this, the Council commissioned an independent investigator to investigate these matters. This investigation was completed at the end of March 2024. The outcome of this was:

• It did not uphold Mr X’s complaint the Council failed to take account of Mrs Y’s wishes and that she wanted a funeral plan due to her daughter’s mental health conditions.
• It did not uphold Mr X’s complaint the Council wrongly asked him to provide a full copy of the funeral plan as it said there was no evidence that this was the case.

30. Following the independent investigation, the Council reviewed the report and wrote to Mr X to say it accepted the findings reached by the independent investigation and did not uphold his complaint.
31. The same day, a local councillor wrote to the Council. They said they did not agree with the independent investigation. The councillor also said that Mr X had asked the Council for a copy of the policy that it was relying on to make its decision, however the Council had failed to send this.
32. The Council responded to the councillor the following day to say that the independent investigation report had been sent to Mr X and this was the end of the complaints process. If Mr X remained unhappy with the Council’s response, then he could approach the Ombudsman.

Response to my enquiries

33. In response to my enquiries, the Council said that it had treated the funeral plan as a capital asset and not a deprivation of asset, throughout the financial assessment.
34. The Council also told me it is not disputing Mr X’s rationale about why Mrs Y chose to arrange a funeral plan, which was because of his wife’s mental health condition. However, the Council said it considered whether Mrs Y’s individual circumstances are ‘exceptional circumstances’ for it to use discretion and disregard the cost of the funeral plan in her financial assessment.
35. The Council said it considered this information, however, concluded that Mrs Y’s individual circumstances were not exceptional. The Council explained it had decided this because Mrs Y has been known to adult social care since January 2016. The Council said at no point since Mrs Y took the funeral plan out had Mr X’s wife been her nominated representative.
36. The Council also explained that records show that Mrs Y’s nominated representatives are Mr X, and also Mrs Y’s granddaughter.
37. The Council concluded that, aside from her daughter, Mrs Y does have family members who play a significant role in supporting her.
38. The Council said, because of this, it sees no reason it should have applied discretion and disregarded Mrs Y’s funeral plan from her financial assessment.

Analysis

The inclusion of the funeral plan in the financial assessment

39. Mr X complained that the Council wrongly decided to include Mrs Y’s funeral plan in her financial assessment.
40. The Ombudsman’s role is to review how councils have made their decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant information, or not properly explained a decision it has made. We call this fault, and, where we find it, we can consider any consequences of the fault and ask the relevant council to address these.
41. However, we do not make operational or policy decisions on councils’ behalf, provide a right of appeal against their decisions, or seek to replace their judgement with our own. If a council has made a decision without fault then we cannot criticise it, no matter how strongly a complainant feels it is wrong. We do not uphold complaints simply because someone feels a council should have done something different.
42. What that means in this particular case is that it is not for me to make my own judgement about whether Mrs Y’s funeral plan should have been included in her financial assessment. However, I can consider whether the Council properly made its decisions about this.
43. The law relating to what capital can be disregarded in a financial assessment is clear. The CSSG provides a comprehensive list of what should be disregarded in a financial assessment, and this does not include a funeral plan. This therefore gives a council flexibility with its charging, and discretion to choose whether to disregard other types of capital, such as funeral plans.
44. Mr X said Mrs Y took out the funeral plan because she had limited family support and her daughter would not be well enough to fulfil her funeral requests. I must therefore consider whether the Council fully considered this when it decided to not use its discretion and include the funeral plan in the financial assessment.
45. Council records show that several different managers considered this matter internally and explained its decision both to Mr X and in response to my enquiries.
46. The Council showed that it consulted with the guidance and considered Mrs Y’s personal circumstances, which included her daughter’s mental health condition. The Council also reviewed Mrs Y’s records dating back to 2016 and found that her daughter had not been formally involved in her care during this time.
47. The Council therefore concluded that the reason Mr X gave for Mrs Y taking out the funeral plan, was not an exceptional circumstance and so it would not exercise discretion to disregard the plan from her financial assessment.
48. I understand that this is a decision Mr X does not agree with, however, this was a decision the Council was entitled to make, and I find no fault in this element of Mr X’s complaint.

Funeral plan policy

49. Mr X complained that the Council failed to have a clear policy and explain funeral plans and assets during the financial assessment.
50. The CSSG is comprehensive guidance which provides the information a council needs about how they should meet the legal obligations placed on them by the Care Act 2014.
51. The CSSG is 431 pages long. The Care Act 2014 does not expect a council to have a policy to cover every single circumstance that may arise during a person’s care and support.
52. The Council was clear with Mr X on several occasions that it had relied on the CSSG to make its decision, and this was in line with the guidance.
53. Therefore, there is no fault in this element of Mr X’s complaint.
54. Linked to this, Mr X and a local councillor complained that the Council failed to provide a copy of its policy regarding funeral plans when asked. As I have already concluded, the Council relied on the CSSG to make this decision.
55. The Council told Mr X that it had used this guidance to make its decision on several occasions. Therefore, I find no fault in this element of Mr X’s complaint.

The Council requesting a full copy of the funeral plan

56. The independent investigation into this matter concluded that Mr X was not specifically asked for a full copy of the funeral plan. However, I have found evidence that the Council did ask him for a full copy of the funeral plan.
57. Mr X explained that this caused upset within his family, as Mrs Y wanted her funeral requests to remain private until after her death.
58. The Council has already accepted that it could have handled this situation better. It has also introduced a service improvement so that this doesn’t happen again.
59. I find no fault in the actions of the Council in relation to this matter. This is because it was not reasonably foreseeable that this request would have led to upset within Mrs Y’s family.

Communication with Mr X

60. Mr X complained the Council communicated poorly and unclearly with him, specifically saying that the Council originally considered the funeral plan to be a deprivation of assets and then changed its mind to say it was a capital asset.
61. In response to my enquiries, the Council said it had treated the funeral plan as a capital asset since the beginning of the financial assessment process. I also found no written references to the Council considering the funeral plan as a deprivation of assets in any of the information I have seen. I therefore find no fault in this element of Mr X’s complaint.
62. In relation to general communication between the Council and Mr X. I am satisfied the Council generally responded promptly and appropriately to Mr X and I do not consider there is any fault in this.

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Final decision

I have completed my investigation with a finding of no fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman