Summary: Miss X complained on behalf of her mother, Mrs Y. Miss X said the Council incorrectly calculated Mrs Y’s contribution for her care. The Council was at fault for delays in reviewing Mrs Y’s care contribution and significant delays in dealing with the complaint. It agreed to pay Miss X and Mrs Y £150 each to recognise the distress and uncertainty this caused.

The complaint

1. Miss X complained on behalf of her mother, Mrs Y. Miss X said the Council:
• told her Mrs Y’s care would be paid for by the Council;
• incorrectly assessed Mrs Y’s contribution towards her care; and
• delayed in responding to her complaints.
2. Miss X also raised concerns about safeguarding matters that took place before June 2022 in a different care home.
3. Miss X says the matter caused her and Mrs Y distress and financial uncertainty about the amount of money owed for her care.

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The Ombudsman’s role and powers

4. 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
9. 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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What I have and have not investigated

10. In her complaint summary to us and in a subsequent phone call, Miss X raised concerns about safeguarding matters that took place before June 2022 relating to Mrs Y’s care in a care home. These concerns were about matters that took place beyond 12 months ago. The law says we cannot investigate late complaints unless we decide there are good reasons as described in point 8 of this decision. I cannot see there is a good reason the safeguarding complaints could not have been brought to us sooner. Therefore, I did not investigate these matters.

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How I considered this complaint

11. I spoke with Miss X about the complaint and considered information she provided.
12. I considered the Council’s response to my enquiry letter.
13. I considered the relevant law and guidance.
14. Miss X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

The relevant law and guidance

Charging for care and support

15. The Care Act 2014 (section 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.
16. When the 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.
17. 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 have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital, but their income will still be taken into account in calculating their contribution to the care costs.
18. The “personal expenses allowance” (PEA) is the amount of money a council must ensure a resident provided with care in a care home is left with after any charges are made for their care. In the year 2022-2023 the amount was £25.65 per week. In the year 2023-2024 the amount was increased to £28.25 per week.

Care Plan

19. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.

Reviews

20. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

The Council’s complaints policy

21. The Council has a two stage complaints process:
• Stage one is responded to by a manager of the service complained about. The Council says it will respond within 15 working days.
• Stage two is an escalation and the final stage for complaints at the Council. The response is made by a manager senior to the original responder. The Council says it aims to respond within 25 working days.

What happened

22. Mrs Y is below pension age and has a diagnosis of multiple sclerosis which affects her health. Mrs Y has capacity to make decisions for herself, but her family member, Miss X, has lasting power of attorney and provides support to Mrs Y generally.
23. In June 2022 Mrs Y moved from a hospital rehabilitation placement to a care home outside the Council’s area which the Council agreed as a short-term placement. This was following an assessment in April 2022 which recommended a residential care home upon discharge. The Council conducted a care needs review meeting, during which Mrs Y told the Council she wanted to remain in the placement.
24. In late June 2022 the Council wrote to Miss X and informed her the placement was agreed at its funding panel as a permanent placement. It informed her the cost was £950 per week, and that she would need to complete a financial assessment on behalf of Mrs Y.
25. In July 2022 the Council conducted a re-assessment of Mrs Y’s care needs. The assessment noted the cost of Mrs Y’s weekly care was £950, and that Mrs Y would be subject to a financial assessment as she owns part of a house. The care package based on the assessment was finalised from mid-September 2022.
26. In August 2022, the Council wrote to Miss X about the financial assessment. It sent a form for her to complete and asked Miss X to set aside all Mrs Y’s weekly income except the Personal Expenses Allowance (PEA) of £25.65 per week. The Council received no response and sent a reminder letter in September 2022.
27. In September 2022, Miss X complained to the Council. She said she had tried to speak with an officer about Mrs Y’s financial assessment and that the Council had told her it would meet the full cost of Mrs Y’s care package. She told the Council she had not received any communication about the matter and was distressed.
28. An officer spoke with Miss X the same day. Miss X reiterated her view that the Council had told her the cost of Mrs Y’s care would be paid for by the Council. The officer informed Miss X a financial assessment was required to enable the Council to decide whether any contributions were due. The officer completed the form with Miss X during the call and sent a copy to her by post to review and sign.
29. In October 2022 Miss X returned a completed financial assessment form to the Council. The form indicated Mrs Y had joint ownership of a property. Miss X noted concerns about historic abuse by the other person who jointly owns the house. Miss X also said the PEA was not sufficient to allow Mrs Y to engage in the community or meet her disability related expenses.
30. Later that month the Council completed its financial assessment of Mrs Y. It based its assessment on the declared assets, including the property jointly owned by Mrs Y. The Council applied a 12-week disregard for the jointly owned property and sent Miss X a letter explaining the costs. It decided Mrs Y was able to pay the full cost of her care but offered a Deferred Payment Agreement (DPA).
31. In November 2022 the Council met with Miss X and agreed the statement of complaint. This included:
• when Mrs Y moved, Miss X was not sent any financial paperwork because of a delay in organising the placement;
• Miss X’s belief the Council told her it would meet the full cost of Mrs Y’s care;
• concerns about a joint property being included in the financial assessment even though there were safeguarding concerns about the person who owned the other half; and
• Miss X’s difficulties in speaking with the finance team.
32. In December 2022 Miss X sent the Council the Deferred Payment Agreement form. The Council considered the matter further and decided Mrs Y’s jointly owned property was not a “realisable asset”. It therefore chose to disregard the property in the financial assessment. The Council’s finance team wrote to Miss X to inform her of the decision, and explained the adult social care team would assess whether to increase Mrs Y’s PEA. It said once the assessment was completed it would adjust the account accordingly.
33. In February 2023 the Council responded at stage one of its complaints process, 103 days after the original complaint. It told Miss X:
• it found no evidence to suggest Miss X was told the Council would pay for Mrs Y’s care in full;
• it understood Miss X’s concerns about Mrs Y’s jointly owned property, but that it still needed to consider the house as part of the financial assessment;
• it would review and clarify Mrs Y’s care contribution and her Personal Expenses Allowance (PEA);
• it would conduct a review of Mrs Y’s placement; and
• apologised for the delay in the complaints process.
34. Miss X was dissatisfied with the Council’s response. She requested to escalate the matter to stage two of the Council’s process. She said she had continued to struggle to speak with the Council and had received no response about the care contribution from June to end of August 2022. Miss X said she needed a full and final calculation.
35. The Council acknowledged Miss X’s request for escalation the next day. It said it would respond within 25 working days.
36. In the same month the Council says it suspended reminder letters for payment whilst the PEA was reconsidered by its adult social care team.
37. In April 2023 the Council wrote to Miss X providing details of the annual uplift cost for Mrs Y’s care contribution. It said Mrs Y’s care contribution would be £120.80 per week.
38. During the same month the Council’s adult social care team completed a “reduction and waiver form” in relation to Mrs Y’s circumstances. The form explained there was a delay in completing a support plan to trigger the financial assessment when Mrs Y first moved to the care home in June 2022. It found no support plan was in place until late August 2022 and so it had not requested a financial assessment until then. It also out set out that when Mrs Y had previously lived in extra care housing, she had paid £49 a week client contribution. The current financial assessment meant Mrs Y did not have funds to access the community to maintain her wellbeing and prevent isolation. As a result, the Council agreed to waive the care contribution from June to end of August 2022, and used its discretion to reduce Mrs Y’s care contribution to £49.00 a week.
39. The Council’s adult social care team then completed a review of Mrs Y’s care needs and updated her care act assessment to reflect the changes.
40. In May 2023 the Council finalised its re-assessment of Mrs Y’s finances. It wrote to Miss X and explained it had agreed to amend Mrs Y’s contribution to her care to £49.00 per week from 1st September to mid-April 2023. It provided a breakdown of the weekly charges. It told Miss X she had already paid £2,000.00 and the account was in credit by £355.00. The Council said this could either be repaid or be used as credit against future invoices.
41. In June 2023 the Council responded at stage two of its complaints process, 66 working days after the stage two request. The Council summarised the complaint which included Miss X’s dissatisfaction about the stage one response and the Council’s calculation of Miss X’s finances, including Mrs Y’s disability related expenditure. In response, the Council said:
• it found it had not written to Miss X about the client contributions between June and August 2022. The Council apologised for the inconvenience this caused and said it would waive the fees for this period in acknowledgement;
• disability related expenses were provided after the client contributions were calculated in September 2022, so there was a discrepancy in the final amount. It had therefore reevaluated the contribution and retrospectively corrected the amount owed from September 2022; and
• said it would meet with colleagues to improve the process by which it managed complaints to ensure responses are completed in a timely manner.
42. Miss X remained dissatisfied with the Council’s response and brought her complaint to us.

Analysis

Care placement charges

43. The Council is entitled to charge Mrs Y for her care contribution based on a financial assessment of her circumstances.
44. Miss X complained the Council told her the care provided for her mother would be paid for by the Council in full. I cannot know exactly what was said to Miss X. The evidence shows the care assessment conducted in July 2022 recorded a financial assessment would be completed in relation to Mrs Y’s care contributions but did not go into detail. The Council sent Miss X a financial assessment form in August 2022, but Miss X says she never received this. However, Miss X was aware from September 2022 that the financial assessment would determine the amount Mrs Y would be charged for her care contribution.
45. In any event, in its stage two response the Council accepted fault for poor communication when it failed to follow its process to inform Miss X about the client contributions for the period June to August 2022. It waived three months of care fees to the point Miss X was made aware a contribution may be required following assessment. This is appropriate to remedy any injustice caused for poor communication during that period.
46. The Council originally determined Mrs Y should pay the full cost of her care because she had part ownership of a property. Once Miss X returned the DPA and explained the extenuating circumstances about why the property should not be considered as an asset accessible to Mrs Y, the Council reviewed the matter and exercised discretion to disregard the property. It wrote to Miss X and informed her about its decision. The Council was not at fault.
47. Miss X also said the original amount assessed for Mrs Y’s PEA was too low and would not allow Mrs Y to engage in activities in the community. The PEA is set by central government and is the minimum amount a resident in a care home must be left with after any charges a council makes for their care. The Council can make discretionary changes to a person’s care contributions if it decides there are good reasons to do so. The Council considered Mrs Y’s circumstances and the evidence provided and made a discretionary decision to reduce her contribution thereby increasing her PEA. There is no evidence of fault in how the Council reached its decision.
48. However, the evidence shows there was a delay between the decision in December 2022 to disregard the property, and April 2023 when the Council decided to reduce Mrs Y’s care contribution. Miss X had first raised concerns about the amount of PEA in October 2022. Whilst the decision to reduce her care contribution was a discretionary matter, the delay in conducting the review was fault. The fault caused Miss X and Mrs Y uncertainty about how much Mrs Y would be expected to contribute toward her care costs.

Complaints process

49. The Council responded to Miss X’s stage one complaint 103 working days after her request. This is against the Council’s policy and is fault.
50. The Council responded to Miss X’s stage two complaint 66 working days after her request. This is against the Council’s policy and is fault.
51. The Council apologised for the delay at both stages and has explained improvements to its processes including attending a course run by the LGSCO; however, this does not go far enough to remedy the injustice the delays caused.

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Agreed action

52. Within one month of the final decision, the Council agreed to pay Miss X and Mrs Y £150 each to recognise the distress and uncertainty it caused when it delayed responding to the complaints and delayed completing the review of Mrs Y’s care contribution.
53. The Council will provide us with evidence it has complied with the above actions.

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Final decision

54. I have completed my investigation. There is evidence of fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman