Summary: Ms B complains the Council did not communicate with herself and her brothers, who have Lasting Power of Attorney for their father, Mr Y, about changes to his care arrangements in January 2023. We have found the Council at fault for failing to keep Mr Y’s family informed of changes to his care plan and charges. The Council has agreed to apologise to the family, make a symbolic payment to remedy the injustice caused and complete service improvements.

The complaint

1. Ms B and her brothers have Lasting Power of Attorney (LPA) for their father Mr Y The LPA gives them power to manage his property and finances and to make health and welfare decisions for him. Ms B complains the Council:
• Did not communicate with herself and her brothers about changes to Mr Y’s care arrangements in January 2023.
• Failed to provide information relating to Mr Y’s self-funding costs when she requested this information in 2021.
• Did not communicate with her effectively or handle her complaint properly.

Ms B says these matters have caused distress to the family and meant the family missed the opportunity to explore other options for their father’s care. Ms B would like the Council to waive Mr Y’s backdated care charges.

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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 documents provided by Ms B.
• Discussed the complaint with Ms B.
• Made enquiries of the Council and considered its response.
5. Ms B and the Council were able to comment on a draft version of this decision. I considered any comments I received before making a final decision.

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What I found

Legal and Administrative Background

Charging for permanent residential care

6. 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.
7. 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.
8. 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.

Property disregards

9. When calculating care charges, the persons main or only home must be disregarded if:
• The person’s stay in a care home is temporary and they intend to return home and their property is still available to them;
• Where the person no longer occupies the property but it is occupied in whole or in part as their main or only home by a qualifying person, such as the persons spouse.
10. The Council must disregard the value of a person’s main or only home when the value of their non-housing assets is below the upper capital limit for 12 weeks when they first enter a care home.
     

The Council’s complaints policy

11. The Council’s complaints policy sets out it aims to acknowledge stage one complaints within 5 working days and it will provide a full response within a further 15 working days.
12. The policy states that where matters are complex, of where further clarification is needed, the 15-day timescale for a stage one response will begin once the complaint matters have been defined and agreed with the complainant.
13. The timeframe for stage two and stage three responses is 25 working days.
14. The policy says that where a complaint is particularly complicated or requires extensive investigation, the complainant will be informed how long the process will take and when they can reasonably expect a final response.

What happened

15. Mr Y became a permanent care home resident in June 2020. The Council has provided evidence it involved Ms B in the care assessment and planning process as she held LPA for Mr Y. In August 2020 the Council sent Ms B the care assessment and a leaflet which explained care charges. Ms B does not agree the Council involved her in Mr Y’s care planning at this stage and does not recall receiving the letter sent in August.
16. In July 2021 Ms B contacted the Council and the care provider, asking them to provide details on self-funding charges if both Mr and Mrs Y were to become permanent care residents.
17. The Council responded to Ms B in August 2021 and explained Mr and Mrs Y’s care charges would need to be amended at the point of any changes to their circumstances. Ms B responded to the Council in September 2021 and explained she would like to know the proposed care charges so the family could explore placement options for Mr and Mrs Y’s future care and knowing the care charges would support them in their decision making.
18. In November 2022 Mrs Y became a permanent care home resident, meaning the marital home was no longer occupied. The Council applied a 12-week property disregard which meant the value of Mr and Mrs Y’s property was taken into account for their care home charges from February 2023. The Council has not provided evidence it contacted Ms B or the other LPAs at this stage to advise them of the upcoming changes to his care charges or discuss other options for Mr Y’s care.
19. The Council did update Mr Y’s care plan on the date he became a self-funder in February 2023, however it has not provided any evidence to show it consulted Mr Y’s LPA’s during the update or provided them with the updated care plan.
20. In May 2023 the Council wrote to Ms B to advise her the 12-week property disregard had come to an end in February and it would complete a re-assessment to determine Mr Y’s financial contribution to his care charges. This letter was sent to Mr Y’s address in error, but Ms B did read the letter.
21. The Council has not provided any evidence it consulted Mr Y’s LPA’s when it completed a revised financial assessment or made Ms B or her siblings aware of the changes to Mr Y’s care charges prior to issuing an invoice for the new charges in May 2023.

Complaint handling

22. In June 2023 Ms B contacted the Council’s adult social care charging team to complain about the changes to Mr Y’s care charges. The team advised it would aim to complete an investigation and provide a response within seven days. Ms B called them back as agreed seven days later, however they were unable to provide an update on the investigation.
23. Ms B sent an email to the same Council team in July 2023 as she had not received any update on the investigation. The team provided a response via email the following day.
24. Ms B was not satisfied with the Council’s response and provided additional information to support her view in July 2023.
25. The adult social care charging team responded to Ms B at the end of August 2023, advising they had passed her queries to the complaints team.
26. The complaints team provided a response to Ms B’s complaint at the beginning of October 2023, over two months after she first raised her complaint. The Council did not uphold Ms B’s complaint.
27. Ms B sent a further complaint to the Council’s complaints team in November 2023 stating she did not feel the Council had fully answered the concerns she had raised. Ms B contacted the Council again in December 2023 as she had not received a response or acknowledgement for the November complaint.
28. The Council’s complaints team provided a response in late January 2023, it apologised for the delay in responding to Ms B’s concerns but did not uphold her complaint. The Council did not signpost Ms B to the Local Government and Social Care Ombudsman in its final response.

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My findings

Communication with LPA’s and information on care charges

29. The Council failed to include Mr Y’s LPA’s in decision making and failed to involve them in updating Mr Y’s care plan in February 2023. This is fault which caused distress, uncertainty and frustration to Ms B and her family.
30. The Council delayed in completing a financial assessment for Mr Y following the 12 week property disregard coming to an end. It did not complete the financial assessment until May 2023 and then back dated charges to February 2023. The delay in completing the financial assessment is fault which caused distress, uncertainty and frustration to Ms B.
31. Ms B asked the Council to provide information relating to Mr Y’s self-funding charges in 2021. There is no fault in the Council not providing this information in 2021 as it was unable to provide accurate self-funding information at this stage. However, the Council should have provided Ms B with a revised financial assessment including details of the proposed care charges prior to implementing the charges in May 2023. This is fault which caused Ms B distress, uncertainty and frustration.

Complaint handling

32. There were delays in the Council providing complaint responses to Ms B, with her first complaint being raised in July 2023 and a final response not being issued until January 2024. This is fault which caused Ms B distress, uncertainty and frustration.
33. The Council did not signpost Ms B to the Local Government and Social Care Ombudsman in its final response. This is fault but it did not cause any injustice to Ms B because she complained to us without needing to be signposted.

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Agreed action

34. Within one month of the final decision the Council will:
• Provide an apology to Ms B for failing to keep Mr Y’s LPA’s informed of changes to Mr Y’s care plan and charges. We publish “guidance on remedies” which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
• Make a symbolic payment of £250 to recognise the frustration, distress and uncertainty caused to Ms B by the Council’s failure to keep her informed of changes to Mr Y’s care plan and charges and the frustration, distress and uncertainty caused to Ms B by the delays in the Council’s complaint process. As Mr Y’s care charges are not in dispute it is not appropriate for the Ombudsman to recommend a waiver of any charges.
35. Within three months of the final decision the Council will:
• Review its procedure and circulate guidance to its adult social care staff about the Councils duty to keep Lasting Power of Attorneys involved with reviews of care plans and financial assessments.
• Ensure its complaints team are aware of the Council’s complaints policy and timeframes and remind this team of the process for keeping complainants informed of any delays.
• Ensure the complaints team signposts all complainants to the LGSCO when the complaints process has been completed.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

We uphold this complaint. The Council has agreed to remedy the injustice caused by the faults identified.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman