Summary: Mrs Y complained on behalf of her father, Mr X. Mrs Y complained about how the Council handled Mr X’s care contributions, requiring him to pay some legitimate bills from his personal expenses allowance. There were some faults by the Council which caused distress, confusion, raised expectations and frustration to Mrs Y. The Council will take action to remedy the injustice caused.

The complaint

1. Mrs Y (an appointed deputy) complained on behalf of her father, Mr X.
2. Mrs Y complained about how the Council handled Mr X’s care contributions, requiring him to pay the following legitimate bills from his personal expenses allowance:
1. Court of Protection application fee
2. Court of Protection annual bond fee
3. Office of Public Guardian deputy assessment fee
4. Office of Public Guardian annual supervision fee.
3. Mrs Y also complained the Council did not issue a credit note for Mr X’s 2023/2024 council tax bill as it stated in its stage 1 response to her complaint.
4. Mrs Y said the matter caused her distress, frustration and the time and trouble raising concerns and making complaints to resolve the issues.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. 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 provide a free service but must use public money carefully. We do not start or continue an investigation if we decide further investigation would not lead to a different outcome (Local Government Act 1974, section 24A(6), as amended, section 34(B))
7. 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

8. I have investigated matters from July 2023 to July 2024. This period covers 12 months from when Mrs Y made a complaint to the Ombudsman in July 2024.

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How I considered this complaint

9. I discussed the complaint with Mrs Y and considered the information she and the Council provided about this complaint.
10. I sent Mrs Y and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

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What I found

Law and guidance

11. The Care Act 2014, the Care and Support Statutory Guidance 2014 and the Care Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support, and its powers to charge.
12. Councils must carry out a financial assessment to make a decision about care charges. This will assess the person’s capital and income. The upper capital limit is currently set at £23,250 and the lower at £14,250. A person with assets above the upper capital limit are required to pay for their own care. Even if the capital is below the threshold of £23,250, people may have to pay a contribution from their income towards their care.
13. Mental Capacity - A person aged 16 or over must be presumed to have capacity to make a decision unless it is established, they lack capacity. Where someone’s capacity is in doubt, councils must assess the person’s ability to make a decision. Councils must follow the law set out in the Mental Capacity Act 2005 to decide if individuals can make choices about their care and may need to carry out an assessment of capacity if there is doubt.
14. Court-appointed Deputies – if there is a need for continuing decision-making powers and there is no relevant Power of Attorney, the Court of Protection may appoint a deputy to make decisions for a person. It will also say what decisions the deputy has the authority to make on the person’s behalf. The Office of the Public Guardian oversees the work of attorneys and court-appointed deputies and produces detailed guidance for them.
15. Court of Protection (COP) Application Fee – COP appoints deputies to make decisions for people lacking capacity to make those decisions. The initial COP application fee is £371 (as of January 2023), and the fee is payable by the person making the application at the time of the application.
16. Office of the Public Guardian (OPG) Assessment and Supervision Fees – a new deputy is required to pay an assessment fee (£100). The deputy must also pay a fee each year to the OPG to cover the cost for the OPG to supervise and support the deputy.
17. Personal Expenses Allowance (PEA) - is the mandatory weekly amount the government says people receiving care in council commissioned care homes should have as a minimum for their personal expenses. The PEA for 2023/2024 financial year was £28.25 per week and £30.15 per week for 2024/2025 financial year.
18. Service users must be left with the full value of their PEA, and it is then up to the service users to determine how they spend it.
19. Council Tax Reduction Schemes – Council tax (CT) is a combination of a tax on the value of a property and a tax on individuals. The owner or occupier pays it. The full CT bill assumes there are two or more adults living in a home. If only one adult lives in the property, the CT bill is reduced by 25%. This is called a single person discount.
20. A Class U exemption is applied to a property when the only adult resident or all the adult residents have severe mental impairment.

Background

21. Mr X lived alone in his home. In October 2021, he was diagnosed with dementia.
22. A Mental Capacity Act (MCA) assessment was completed for Mr X and found he did not have the mental capacity to manage his finances.
23. In 2022, Mr X was admitted to the hospital for some weeks following a fall at his home. A personal monitoring alarm service was offered to Mr X, so he could maintain his independence, but he declined the service.
24. In November 2022, Mr X moved into a residential care home which was commissioned by the Council.

Key events

Council Tax

25. In September 2023, Mrs Y was appointed as Mr X’s deputy for property and affairs.
26. Mrs Y said Mr X’s CT bill for financial year 2023/2024 was a total of £1,374.57. This included a £372.92 discount amount which was applied to his bill.
27. In February and March 2024, Mrs Y contacted the Council and said Mr X should get a full CT exemption because of his impairment (dementia). She provided a medical letter as supporting evidence.
28. There was a considerable amount of correspondence exchanged between Mrs Y and the Council. The Council explained it applied a 25% single person discount to Mr X’s CT account until he moved into residential care home. The Council said it amended and applied the Class U exemption (full exemption) to Mr X’s account in March 2024 when it became aware of his impairment. It then backdated the full exemption to October 2021, the date of Mr X’s dementia diagnosis.
29. The Council confirmed Mr X’s 2023/2024 CT bill of £1,374.57 was correct and remained outstanding.
30. Mrs Y paid a total of £1,001.65 for Mr X’s 2023/2024 CT bill in March 2024. Mrs Y did not pay the £372.92 discount amount she disputed. She asked the Council to provide her with a copy of its policy which stated it could apply a “discount charge” when applying an exemption to a person’s CT bill.

Care Charges

31. In February and March 2024, Mrs Y also raised a query with the Council about an incorrect charge of a sum of £350.68 for a personal monitoring alarm service which Mr X did not request. She asked the Council to reimburse Mr X with the £350.68 he had been charged for the service.
32. In April, the alarm service provider accepted the error, and the Council provided a credit note for the full amount in May.

Complaint – CT, Care Charges and Deputyship Legal Fees

33. In May 2024, Mrs Y made a formal complaint to the Council about an invoice she received for Court of Protection (COP) fees, Office of the Public Guardian (OPG) fees and Mr X’s 2023/2024 CT bill. The invoice covered the period from 12 January 2023 to 24 March 2024.
34. Mrs Y questioned why the Council asked Mr X to pay his outstanding bills from either his existing capital or from his personal expenses allowance (PEA) as the PEA should not be used to pay for legitimate bills.
35. On 7 May, in its stage 1 complaint response the Council said councils are only required to make an allowance for care items or disability related items in line with the Care and Support Statutory Guidance. The Council said it could therefore make allowance for the OPG supervision fee but said Mr X’s other bills should be paid from his PEA.
36. The Council also said it would issue a separate credit note for Mr X’s CT amount, subject to the Council’s authorisation process. The Council did not state the exact amount for the credit note it said it would issue for the CT amount.
37. Mrs Y asked the Council to escalate her complaint and asked the Council to:
1. update Mr X’s invoice to show the payments she had made so far towards his bills.
2. update Mr X’s invoice to reflect the £350.68 credit note issued in May was for the incorrect alarm service charge.
3. apply the credit note the Council said it would issue in its 7 May correspondence to Mr X’s CT account.
4. refund the total of £633.42 COP/OPG legal fees Mr X had incurred:

• COP application fee = £370
• COP annual bond fee = £69
• OPG deputy assessment fee = £100
• OPG annual supervision fee = £94.42.

38. The Council final response acknowledged the description of the £350.68 credit note it issued in May was unclear and said it was for Mr X’s CT. It provided Mrs Y with a financial summary which included the applied credit notes and payments she had made. The Council acknowledged the details of the extra COP/OPG costs Mrs Y provided. It said it had considered the COP application fee and the OPG supervision fee within Mr X’s Financial Assessment (FA) calculation and confirmed the values had been annualised and included as a weekly disregard within the revised FA. The Council included Mr X’s revised FA which showed a reduction in his weekly contribution.
39. The Council apologised to Mrs X if it had provided her with any misleading information.
40. Mrs Y remained dissatisfied and complained to the Ombudsman. Mrs Y said she had received credits from the Council for three COP/OPG legal bills, COP bond fee (£69), OPG assessment fee (£100) and OPG supervision fee (£94.42).
41. In its response to the Ombudsman’s enquiry, the Council:
1. explained it had, with good intentions, tried to deal with all Mr X’s bills (care charges and CT bills) under one department to avoid Mrs Y having to contact different departments. But it acknowledged this caused some confusion.
2. confirmed the £350.68 credit note was for the alarm service Mr X was incorrectly charged and not for Mr X’s CT.
3. apologised for the confusion caused by the credit note it said it would issue/apply to Mr X’s 2023/2024 CT bill. The Council said as a goodwill gesture, it will write off the £372.92 amount Mrs Y had disputed.
4. said it should have considered the COP and OPG fees as part of Mr X’s financial assessment and not from his PEA. The Council said it will make allowance for ongoing fees relating to a person’s housing, disability or medical condition to ensure the person has sufficient weekly PEA. So, as regards the ongoing deputyship legal fees, the Council said it had agreed to apply a yearly credit to Mr X’s care fees as requested by Mrs Y.
42. The Council confirmed it did not refund Mr X with the £370 COP application fee. The Council said this was because it is a one-off capital fee paid by Mr X from his available capital. And because Mr X’s capital was below the lower capital limit the spend would not affect the financial assessment. The Council said in a case where Mr X had been unable to afford the fee, Mrs Y could have applied for a fee remission for Mr X.

Analysis

2023/2024 Council Tax Bill

43. The crux of the matter was that Mrs Y disputed Mr X’s 2023/2024 total bill of £1,374.57, in particular the £372.92 discount amount added to the bill and the credit note the Council said it would issue for Mr X’s CT.
44. The Council provided its explanation to Mrs Y on several occasions on how it originally applied the 25% single person discount and subsequently applied the 100% Class U exemption to Mr X’s bill due to his impairment. The Council acted promptly and applied the 100% Class U exemption to Mr X’s bill in March after Mrs Y informed it of his impairment. It also backdated the full exemption to when Mr X was diagnosed with dementia. This was not fault.
45. I agree councils cannot apply two CT reductions concurrently, in Mr X’s case the 25% single person discount and the Class U exemption. Therefore, I find the Council correctly applied the £372.92 amount to Mr X’s CT Bill. This was not fault. However, from the various correspondence/CT bill breakdowns the Council sent to Mrs Y; the CT amounts were different. This was fault and caused Mrs Y confusion, distress, frustration and the time and trouble chasing the Council about the matter. But the Council has agreed to write off the outstanding £372.92 CT amount which was the outcome Mrs Y was seeking.
46. As regards the credit note the Council said it would issue/apply to Mr X’s CT, it was unclear how the Council reached this decision and how it dealt with the matter. This was fault. It caused confusion to Mrs Y and raised her expectations.
47. While I am aware the Council tried to resolve issues by dealing with Mrs Y’s complaints together, in this instance it caused added confusion. This was fault. The Council got itself mixed up when it wrongly informed Mrs Y that the £350.68 credit note which was issued in May for the personal monitoring alarm service Mr X was incorrectly charged for was the credit note it said it was going to issue for his CT bill. This caused further confusion, distress and frustration to Mrs Y.
48. In its enquiry response, the Council acknowledged its error, the confusion caused about the CT credit note and it has agreed to waive the outstanding £372.92.

Deputyship Legal Fees

49. The Council has confirmed the deputyship legal fees matter (COP annual bond, OPG deputy assessment and OPG annual supervision fees) had now been resolved. And the Council agreed to apply a yearly credit for the ongoing deputyship legal fees to Mr X’s care fees. This is welcome.
50. However, I find fault by the Council with its initial refusal to consider these legal fees as part of Mr X’s financial assessment and not from his PEA. And I find further fault with the Council’s delay in resolving the matter. It took the Council approximately eight months to fully resolve the deputyship legal fees issue. These faults caused Mrs Y distress, frustration and the time and trouble chasing the matter with the Council.
51. As regards the £370 COP application fee, I agree with the Council’s reasons for not refunding Mr X with the amount. I consider Mrs Y could have applied for a fee remission if she considered Mr X was unable to afford the COP application fee. This was not fault.

Conclusion

52. While I note the Council has accepted its failings as stated above and it has agreed to remedy the injustice caused to Mrs Y, I consider these are partial remedies in line with our guidance on remedies.
53. I find not all the injustice caused to Mrs Y had been remedied by the Council. This will be addressed in the ‘action’ section below.

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Action

54. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Mrs Y and make her a symbolic payment of £300 to acknowledge the distress, confusion, frustration and the time and trouble caused to her by the Council’s failure to properly deal with the deputyship legal fees refund and in a timely manner. The apology should be in accordance with our guidance, Making an effective apology
• write off the £372.92 outstanding amount on Mr X’s 2023/2024 council tax bill
• by training or other means remind relevant staff of the importance of identifying and allocating people’s complaints to the appropriate Council’s department where the person has made several complaints. This is to ensure separate complaints are properly considered and dealt with by the appropriate department
• give clear information/train relevant staff about the importance of properly considering service users’ deputyship legal fees refund as part of their financial assessments. This is to ensure service users are not expected to use their personal expenses allowance to pay for these legal fees.

55. The Council should provide us with evidence it has complied with the above actions.

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Final decision

56. I find evidence of some faults by the Council leading to injustice. The Council will take action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman