Summary: Mr X complained that the Council delayed in carrying out a financial assessment for his late mother, Mrs Y, and then issued a large, unexpected bill for backdated care costs. He also says the Council delayed in advising the family about benefits Mrs Y may have been able to claim and gave inadequate notice to end her placement at a care home. We found the Council was at fault. It has agreed to apologise to Mr X and make a payment to him in recognition of the distress, uncertainty and frustration caused.

The complaint

1. Mr X complains that the Council delayed in carrying out a financial assessment for his late mother, Mrs Y, and then issued a large, unexpected bill for backdated care costs causing her family significant distress. He also complains that the Council delayed in advising the family about benefits Mrs Y may have been entitled to which has caused a loss to her estate.
2. Mr X also says the Council gave inadequate notice to end Mrs Y’s placement causing the family distress and uncertainty.

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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 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)
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)

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How I considered this complaint

5. I have considered all the information provided by Mr X and documents provided by the Council.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Charging for care and support

7. 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.
8. 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. The financial assessment considers both the income and the capital the person has.
9. The Guidance says councils must “provide information to help people understand what they may have to pay, when and why and how it relates to people’s individual circumstances. This must include the charging framework for care and support, how contributions are calculated (for both assets and income) and the means tested support available, top ups and how care and support choices may affect costs”.

Light touch financial assessments

10. In some circumstances, a council may choose to treat a person as if a financial assessment had been carried out. To do so, it 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. This is known as a ‘light-touch’ financial assessment.

Capital limits

11. The capital limits, specified in regulations issued under the Care Act 2014, set the levels of capital (excluding any capital that has been disregarded) that a person can have while qualifying for financial support from their local council.
12. A person with assets above the capital limit (£23,250) is responsible for the full cost of their care in a care home. A person with assets between the capital limits will pay what they can afford from their income, plus a means-tested contribution from their assets. A person with assets below the lower capital limit will pay only what they can afford from their income.

12-week property disregard

13. The council must disregard the value of a person’s property in the financial assessment for the first 12 weeks of a permanent care home placement.

NHS Continuing Healthcare Assessments

14. NHS Continuing Healthcare (CHC) is a package of ongoing care arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care. Such care is provided to people aged 18 years or over, to meet needs arising from disability, accident or illness.

NHS-Funded Nursing Care

15. NHS-Funded Nursing Care (FNC) is the funding provided by the NHS to care homes providing nursing, to support the cost of nursing care delivered by registered nurses. If a person does not qualify for NHS Continuing Healthcare, the need for care from a registered nurse must be determined. If the person has such a need and it is determined their overall needs would be most appropriately met in a care home providing nursing care, then this would lead to eligibility for NHS-Funded Nursing Care.

Deprivation of Liberty Safeguards (DoLS)

16. The Deprivation of Liberty Safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation.

Best interest decision making

17. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.

Lasting Power of Attorney

18. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' is the person chosen to make a decision on the donor’s behalf. Any decision must be in the donor’s best interests.

Key facts

19. In November 2021 Mr X’s mother, Mrs Y, was discharged from hospital to a residential care home (‘the Home’). This was an interim placement which was funded by the NHS.
20. In February 2022 an adult social care hospital social worker contacted the NHS CHC team to arrange a meeting to determine whether Mrs Y had a primary health need.
21. The meeting took place in March. It was decided that Mrs Y was not eligible for CHC funding. No information was recorded to indicate that any discussions took place with the family or Mrs Y regarding long-term plans. Mr X says he understood Mrs Y’s care would be funded by the Council.
22. In late March/early April the Council telephoned Mr X about a DoLS for Mrs Y which started on 11 April. Mr X says that, because Mrs Y was subject to a DoLS, he assumed her care would be funded by the Council.
23. On 5 May the Council completed a Care Act assessment and support plan. It also completed a mental capacity assessment which concluded that Mrs Y did not have capacity to make a decision on where she should live. So, a Best Interest decision was needed.
24. On 6 May the social worker referred the case to the finance team requesting a financial assessment for a nursing dementia placement. This task was allocated to a finance officer.
25. On 22 June Mrs Y’s placement became permanent. She began receiving funded nursing care (FNC).
26. On 5 October a finance officer entered a record advising that no further action was required as there was no chargeable contract with the Home.
27. On 31 January 2023 a brokerage service manager entered a record stating that the support plan had never been forwarded to the brokerage team to create a contract and the Home was advising they had not been paid since Mrs Y became a permanent resident in June 2022.
28. The social worker later completed a proposed personal budget requesting a permanent nursing dementia placement at the Home. The placement was agreed on 14 March 2023 and backdated to 22 June 2022.
29. On 11 April a finance officer recorded that she left a voicemail message for Mr X about carrying out a financial assessment. Mr X says he did not receive this message.
30. Meantime, the Council requested a Land Registry search on Mrs Y’s previous address. This showed that the property had been sold in September 2022. This indicated that Mrs Y had capital over the threshold of £23,250. As a result, the brokerage team informed the Home that the Council would end the contract on 24 April.
31. On 17 April a finance officer left another voicemail message for Mr X. He says he did not receive this. The officer also wrote to him stating that Mrs Y had been assessed to pay the full cost of her care. The officer also stated that Mrs Y was eligible to claim Attendance Allowance. The officer said that, if Mr X wished to undergo a full financial assessment, he should contact the finance team. The officer enclosed a copy of the Council’s booklet entitled ‘Charging for care and support - How much will I pay?’ together with the current schedule of fees and charges.
32. On 20 April the Home told the Council they had spoken to Mr X about future payments but he was unaware the Council was going to end the contract. The social worker telephoned Mr X and left a voicemail explaining that Mrs Y was full cost and he would need to contract privately with the home. Mr X says he did not receive this voicemail.
33. Mr X then received the Council’s letter of 17 April. He made a complaint saying this was the first correspondence he had received in relation to the cost of Mrs Y’s care.
34. In October 2023 Mrs Y died.
35. On 31 May 2024 the Council responded to Mr X’s complaint and apologised for the delay in doing so. The letter enclosed a copy of an investigation report which set out various recommendations. The Council has completed some of these recommendations. It apologised for inaccuracies in its letter dated 17 April 2023 and for the length of time taken for the financial assessment to be completed. The Council also confirmed that the start date of Mrs Y’s care charges would be amended from 22 June to 22 September 2022 to take account of the property disregard period which would have been put in place had the financial assessment being completed at the time.

Analysis

Delay in providing financial information

36. A council should normally complete a financial assessment once it has decided a person’s needs are eligible for council support or involvement and before creating a personal budget and care and support plan.
37. In urgent cases, where councils have to arrange care before completing the assessment and planning process, we would expect them to at least have given people a reasonable estimate of likely charges before they have to decide what care services they want the Council to arrange. We would also expect councils to complete the formal financial assessment as quickly as possible after that.
38. We expect financial information to be provided in writing as much as possible. Where the information was provided in an informal conversation with the social worker, councils should be able to provide detailed records of those conversations setting out what issues were covered.
39. In this case, the Council has not been able to provide evidence that Mrs Y or her family were given any written information about charges or what fees to expect at the outset. It has also been unable to provide evidence that any conversations were held with the family about paying for Mrs Y’s care. The Council’s letter of 17 April 2022 is the first evidence of any financial information being given to Mr X. This was 10 months after Mrs Y’s placement became permanent. This was fault and meant Mr X was denied the opportunity to make decisions regarding Mrs Y’s care services.
40. This letter was a standard letter which had not been proofread. This meant it was confusing and failed to properly explain why Mrs Y was responsible for paying the full costs of her care. This caused Mr X confusion and uncertainty.
41. In addition, in the letter the Council should have given Mr X an opportunity to provide information in relation to the financial assessment before a decision was made as to whether Mrs Y was full cost. Failure to do so was fault.
42. In the letter, the Council claimed a substantial backdated payment. As the family had been given no information at the outset about what Mrs X would likely have to contribute towards the costs of her care, Mr X experienced the shock of receiving a large, unexpected invoice. This caused him significant avoidable distress. The Council has apologised. However, I do not consider this to be a sufficient remedy for the injustice caused.
43. Mrs Y’s social worker requested a financial assessment on 6 May 2022. No financial assessment was completed until several months after Mrs Y died. This was fault.
44. The Ombudsman will not normally recommend a council waives payments for care that has been received. It is common knowledge that most people have to pay towards the cost of their care and we expect families to do their own research or ask the council for more information about paying for care. People should not generally assume the absence of a completed financial assessment means they will not have to pay anything towards care. However, we usually consider it appropriate to recommend an apology and a symbolic payment for the distress caused by the delay in completing a financial assessment and inadequate financial information provided at the outset. I have made a recommendation to that effect below.

Delay in advising the family about benefits

45. In its letter of 17 April 2022, the Council explained that, as Mrs Y had been assessed to pay the full cost of her long-term residential care, she was eligible to claim Attendance Allowance if she was not already in receipt of other disability benefits. She was advised to contact the Department of Works and Pensions.
46. The Council had not previously provided this information. If it had done so at the outset, Mrs Y could have applied for benefits, including higher rate Attendance Allowance from the date she was assessed as being full cost. She lost the opportunity to do so. However, we would have expected the family to do their own research to find out what benefits, if any, Mrs Y was entitled to.

Poor record-keeping

47. In May 2022 the Council completed a mental capacity assessment which concluded that Mrs Y did not have capacity to decide where she should live. A Best Interest decision was therefore needed. As Mr X had Power of Attorney for health and welfare and for property and finances, he should have been consulted. There is no documentary evidence of any discussions held with Mr X concerning Mrs Y’s placement or the requirement for him to make a Best Interest decision about whether she should remain at the Home permanently or move to an alternative placement. No Best interest decision was recorded.
48. The lack of adequate records was fault and causes uncertainty.

Notice to end the placement

49. On 17 April 2023 the Council informed the Home that it would terminate the contract on 24 April. It says it tried to contact Mr X by telephone, but Mr X says he did not receive any messages. The Council wrote to Mr X on 17 April informing him that Mrs Y was now considered to be full cost, but the letter did not explain that the Council had terminated the contract with the Home. Mr X was unaware of this until 20 April when he was informed by the Home.
50. The Council was required by its contract with the care provider to give the Home with at least 7 days’ notice to terminate the placement. I find it should have informed Mr X at the same and advised him of the steps he needed to take. Failure to do so was fault and caused him distress and uncertainty.
51. The proposed termination of the contract should also have been discussed with Mrs Y’s social worker before a decision was made. Failure to do so was further fault.
52. Mr X says the Council should not have ended the contract with the Home but should have continued with it, paying Mrs Y’s fees to the Home and then charging her full cost. He says that, when the contract ended, he had to enter a private contract with the Home and the fees increased significantly. I find no grounds to criticise the Council’s decision which is one it was entitled to reach. However, as explained above, it should have given Mr X more notice.

Complaint response

53. Mr X complained to the Council on 24 April 2023. The Council did not send a substantive response until 31 May 2024. This was a significant delay and created further distress and frustration.
54. The Council has apologised for the delay in responding to Mr X’s complaint. But I do not consider this to be a sufficient remedy for the injustice caused, given the length of the delay. I have therefore made a further recommendation below.
55. The Council has also apologised for the inaccuracies in its letter of 17 April 2022 and the delay in completing a financial assessment. However, the Council has not offered Mr X a remedy for the injustice he suffered because of its failings. I have therefore made recommendations to remedy the injustice caused below.

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Agreed action

56. The Council has agreed that, within one month, it will:
• issue a written apology to Mr X for all the faults identified above;
• pay Mr X £500 in recognition of the distress he experienced because of the Council’s failure to provide financial information at the outset, the significant delay in carrying out a financial assessment and the failure to give him reasonable notice of the termination of the contract with the Home;
• pay Mr X £250 in recognition of the lost opportunity to claim benefits on Mrs Y’s behalf; and
• pay Mr X £150 in recognition of the distress and frustration caused by the delay in responding to his complaint.
57. The Council has also agreed that, within three months, it will:
• complete all the recommended actions set out in its complaints report; and
• issue a reminder to relevant staff that they should share the Council’s booklet on charging for adult social care at the start of their involvement with a person for whom the Council is arranging care for the first time.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. I find fault causing injustice.
60. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman