Summary: Ms X complained the Council did not explain or provide sufficient information about her stepmother, Mrs D’s respite care home fees or the extension of her stay. We find fault with the Council as it did not provide clear information about care contributions or follow up significant conversations in writing. Mr B and Mrs D have suffered an injustice and the Council has agreed to apologise and pay £150 for the confusion caused.

The complaint

1. Ms X complained the Council did not clearly explain or make her father Mr B aware that her stepmother Mrs D, would be responsible for paying a contribution towards the cost of her respite care placement. She says Mr B had had not been involved in the decision to extend Mrs D’s respite stay for longer than two weeks.
2. Ms X would like the Council to waive the fee for the added time Mrs D spent in respite.
3. Ms X represents her stepmother Mrs D and her father Mr B in making this complaint.

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The Ombudsman’s role and powers

4. If we are satisfied with a council’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 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)
6. We may investigate a complaint on behalf of someone who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

7. If we are satisfied with a council’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

8. I have considered the correspondence in support of the complaint.
9. I have made enquiries with the Council and considered the responses provided.
10. I have sent a draft to Ms X, Mr B and the Council and I have considered the comments I have received before making a final decision.

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What I found

Law and Guidance

11. The charging rules for residential care are set out in:

• The Care Act 2014.
• Care and Support (Charging and Assessment of Resources) Regulations 2014.
• Care and Support Statutory Guidance 2014.

12. Sections 9 and 10 of the Care Act 2014 say councils must assess the needs of an adult who appears to need care and support. The council must do this regardless of whether it thinks the person has eligible needs and regardless of the person's finances. Following an assessment, the Council must decide which needs are eligible for their support. If the Council provides support, it must produce a written care plan.
13. Councils must assess a person’s finances to decide what contribution they should make to a personal budget for care. There are differences in how income is treated in a care home and in other settings, such as receiving care at home.
14. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it must follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
15. The rules state that people who have over the upper capital limit of £23,250 are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
16. Most people will have to pay something towards the cost of a care home even if they have capital of less than the lower capital limit of £14,250. Usually, a person is expected to pay all their regular income towards their placement after deducting an amount for their personal spending which is known as their personal expenses allowance.
17. The framework is therefore based on the following principles that local authorities should consider when making decisions on charging. The section of principles is that the approach to charging for care and support needs should:

• ensure that people are not charged more than it is reasonably practicable for them to pay
• be comprehensive, to reduce variation in the way people are assessed and charged
• be clear and transparent, so people know what they will be charged

18. Section 8.9 of the guidance says ‘where a person lacks capacity, they may still be assessed as being able to contribute towards the cost of their care. However, a local authority must put in place policies regarding how they communicate, how they carry out financial assessments and how they collect any debts that take into consideration the capacity of the person as well as any illness or condition. Local authorities are expected to use their social work skills both to communicate with people and, to design a system that works with, and for, very vulnerable people’.
19. The guidance says a local authority “may choose to treat a person as if a financial assessment had been carried out. In this case, the local authority “must be satisfied on the basis of evidence provided by the person that they can afford, and will continue to be able to afford, any charges due”. It suggests ways a local authority might be satisfied the person can afford any charges. This includes property where the person’s share is clearly worth more than the upper capital limit. Also, savings clearly worth more than the upper capital limit or sufficient income left following the charge due.
20. Where the local authority is going to meet the person’s needs, and it proposes to undertake a light-touch financial assessment, it should take steps to assure itself that the person concerned is willing, and will continue to be willing, to pay all charges due. It must also remember that it is responsible for ensuring that people are not charged more than it is reasonable for them to pay. Where a person does not agree to the charges that they have been assessed as being able to afford to pay under this route, a full financial assessment may be needed.
21. When deciding whether to undertake a light-touch financial assessment, a local authority should consider both the level of the charge it proposes to make, as well as the evidence or other certification the person is able to provide. They must also inform the person when a light-touch assessment has taken place and make clear the person has the right to request a full financial assessment should they so wish, as well as making sure they have access to sufficient information and advice, including the option of independent financial information and advice.

What Happened

22. Ms X and Mr B hold lasting power of attorney for Mrs D for finance and welfare.
23. Mrs D lives with her partner Mr B and suffers from multiple health issues and dementia. In July 2019 Mrs C’s health started to decline. The Council says Mr B contacted it and asked for support in caring for Mrs D. Mr B disputes this.
24. Mrs D’s social worker suggested that Mrs D may benefit from short term residential respite care to prevent a carer breakdown. The Council says it discussed this with Mr B and Mrs D who both agreed to the respite. Mr B disagrees and says respite was not discussed.
25. The Council started a needs assessment and independence assessment in August 2019 with the consent of Mr B and Mrs D. The Council’s notes say it discussed respite care with Mr B and explained there may be a cost for care. Mr B explained he did not know about Mrs D’s finances and said he would find out if she was above capital limits. The Council says it gave Mr B and Mrs D a leaflet about care fees entitled ‘What you should expect to pay for care services’.
26. The social worker called Mr B in September 2019 and the Council’s notes say that it discussed care contributions and savings above the capital limit. The Council says that Mr B explained that he felt that some of Mrs D’s money was rightfully his due to him paying bills and housekeeping for a long time. The social worker also visited Mrs D and Mr B and told Mr B and Mrs D that respite would be for two weeks and that it was not a long-term choice. The Council’s notes say that Mr B told the Council that Mrs D had savings above the capital limit. The Council says that Mr B was involved in all discussions about Mrs D’s respite stay, and decided on a residential home that would be easy to travel to so he could visit Mrs D.
27. In October 2019 Mr B signed a financial assessment referral. The document is headed ‘paying some money for the support I need’ with the boxed ticked stating “I agree to a financial assessment by a benefits and assessment officer, who will contact me to arrange a visit.” The Council’s notes say that Mr B also confirmed verbally to the social worker that Mrs D’s savings and assets were above the capital limit.
28. Mrs D moved into respite care in early October 2019.
29. A support plan was put in place between early and mid-October 2019. This document details Mrs D’s personal budget and cost of respite per week. It says that Mrs D was willing to go into respite care for a short time so Mr B could have a break and would reassess Mrs D to determine the care she would need on her return home. The support plan also detailed the weekly charge of the care home, and that longer term respite was considered if suitable care could not be found for Mrs D to return home. Ms X says the family were unaware of this plan.
30. During Mrs D’s respite stay the social worker visited the residential home and held two discussions about extending Mrs D’s stay as it could not source suitable care for Mrs D to safely return home. The Council’s notes say that Mr B was involved in all the reviews and discussions regarding extending Mrs D’s stay and that until suitable care could be sourced it recommended Mrs D stay in respite care. The Council says that Mr B agreed to Mrs D’s extended respite. Mr B disputes this and says that he was not part of any discussions and believed Mrs D’s respite stay would be for two weeks. He says the Council decided to extend Mrs D’s respite stay to six weeks.
31. The Council’s notes show that Mr B disputed the Council had told him about Mrs D contributing to her care in October 2019. It says Mr B was aware of the costs as he asked if he had to pay for his own drinks. The Council says that during a telephone discussion, it reminded him that he had signed the agreement for a financial assessment to be undertaken. Mr B said he felt that some of Mrs D’s money was his and that he had not been told she would have to contribute to the cost of her respite care. The Council says it advised Mr B to seek legal advice about the money he believed was his.
32. As the Council was not able to source a suitable home care, Mr B arranged a private care package so that Mrs D could return home in November 2019.
33. In late January 2020, the Council sent Mrs D a letter. It told her about the weekly cost of care and said she must pay the full cost for the service she received from October 2019.
34. Mr B verbally complained to the Council in February 2020 about the cost of care. He said he had asked for the weekly cost but was never told. He said he had not been told or consulted about the initial and extended respite care and said that he did not know how much money Mrs D had in her bank account. Mr B says that while speaking with a social work assessor he was told the Council would ‘sort it.’ From that statement Mr B believed the Council would take care of the costs.
35. In August 2020, Ms X made a complaint and said the Council had failed to communicate the need for a care contribution and had told Mr B that Mrs D’s respite would only be for two weeks. She said that it was the Council’s decision to extend Mrs D’s respite due to its failure to secure care for Mrs D’s return home. Ms X argued that Mr B had not been involved in or told of the extension to respite care and felt that he should not have to pay a care contribution.
36. In September 2020 the Council replied to Ms X’s complaint. It did not uphold her complaint and said the Benefits and Assessment team had spoken with Mr B to confirm costs and to make clear the charges payable. The Council said it was Mr B who had sought a respite break and that he had been involved in all decisions about Mrs D’s respite care. It said the costs remained chargeable and offered Mr B the choice of paying these via an affordable payment scheme.
37. Mr B and Ms X were not satisfied with the Council’s response and disputed the Council’s recollection of events. Ms X complained to the Ombudsman in February 2021.
38. In response to my enquiries, the Council says Mr B knew about the financial costs having been involved in discussions about Mrs D’s need for respite care. The Council says it involved Mr B in discussions and he supported the initial and continued respite care for Mrs D. The Council’s notes do not record the assessor saying they would ‘sort it’. However, the notes show the assessor noted as an action to follow up the telephone call discussing Mr B’s concerns with a team manager and the finance team.
39. Ms X in her reply to a draft of this decision said that Mr B was under a lot of pressure at the time of Mrs D receiving respite care and that he was functioning on very little sleep. Ms X says that recollection of events differ between the family and the Council.

Analysis

40. The law says even if a person has less than £14,250, they are still required to contribute some of their income to pay for their care home placement. Therefore, the Council is not at fault for asking Mrs D to pay a contribution for her residential care costs.
41. Mr B consented to financial assessment and confirmed that Mrs D was over capital limits. The Council completed a needs assessment in October 2019 which detailed the cost of the respite care. It also provided evidence showing it had many discussions with Mr B before and during Mrs D’s respite and provided him with a leaflet about care contributions. I am satisfied that Mr B was aware of the implications of Mrs D's savings being above capital limits and that she would be required to pay towards her respite care costs.
42. The Council completed a light touch financial assessment in October 2019 once it was aware Mrs D’s finances were above capital limits. This required her to pay for the full cost of her respite care. The Council did not tell Mr B in writing that Mrs D needed to contribute to her costs until January 2020. The Council also failed to share a copy of the assessment with Mr B showing how it had calculated Mrs D’s contribution. The guidance says the Council should be clear and transparent about charging to ensure clients know the amount they will be charged. The Council should also assure itself the person concerned is willing, and will continue to be willing, to pay all charges due. If a person does not agree to the charges that they have been assessed as being able to afford to pay, a full financial assessment may be needed. The Council should have considered completing a full financial assessment as well as sharing the light touch financial assessment with Mr B. It did not do this, and this was fault which caused Mr B avoidable confusion.
43. The Council’s notes record officers’ recollections of conversations and events about Mrs D’s admission and extension of respite care. I am satisfied that Mr B was made aware and was involved in discussions about both the initial and extended respite care of Mrs D. Mr B recalled the Council told him it would ‘sort it’ during a telephone conversation. The Council’s notes of the conversation in February 2020 do not record this. We consider it best practice for councils to follow up significant conversations and events in writing. The Council failed to do this. A letter summarising the telephone conversations would have given Mr B the opportunity to challenge the Council’s recollections of significant events at the time. The Council’s failure is fault and caused Mr B further avoidable confusion.
44. Where we find fault that has caused injustice, we aim to put the person back in the place they would have been but for the fault. Our Guidance on Remedies suggests that where this is not possible, we will recommend the Council makes a symbolic payment in recognition of the confusion caused to Mrs D and Mr B.
45. Mrs D was above the capital limits and so the Council was entitled to assess and charge Mrs D the costs of her respite care. This means but for any fault by the Council in communicating that fact, Mrs D was always liable for the care costs. In its response to Ms X’s complaint, the Council offered Mrs D the opportunity to pay the cost of the respite care via a payment plan.

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Agreed action

46. By the 4 November 2021 the Council will;

• apologise to Mrs D, Mr B and Ms X for the confusion caused;
• pay Ms X (on behalf of Mrs D and Mr B) £150 in recognition of the confusion caused by failing to follow up significant conversations in writing and for failing to provide clear information to ensure Mr B understood the client contribution; and
• Share the Final Decision with staff dealing with care contributions to encourage them to follow up any discussions with clear written information about care costs.

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Final decision

47. I find fault with the Council as it did not provide sufficiently clear written information that Mrs D and Mr B needed to pay client contributions or follow up significant conversations in writing. This has caused an injustice to Mr B and the Council has agreed to remedy this.

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Investigator's decision on behalf of the Ombudsman