Summary: Mr X complained about the Council’s blanket policy requiring him to apply for deputyship before it would carry out a financial assessment to determine his mother’s contribution to her care costs. The Council was at fault for not explaining why it would not exercise discretion to depart from its usual policy in this case. It was also at fault for a delay in responding to the complaint at stage 2 of its complaints process. The faults caused frustration and additional time and trouble for Mr X. The Council will apologise, pay him £300 and make review its processes.

The complaint

1. Mr X complained about the Council’s blanket policy requiring him to apply to the Court of Protection to become a deputy for his mother because she did not have capacity to consent to a financial assessment and he did not have a Lasting Power of Attorney (LPA) for finances. He said a deputyship was not necessary because he was managing her income and outgoings using a joint bank account.
2. He said the Council’s inflexible approach and the refusal of its finance team to discuss the matter with him, meant he was put to considerable time and trouble pursuing the matter and making the application, and incurred costs. He was also caused avoidable stress.
3. Mr X was also unhappy with the Council’s complaints handling at stage 2 of its complaints process, which he said took too long and did not add anything to the stage 1 response. It also implied he was not acting in his mother’s best interests, which he found offensive.

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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. 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

7. I considered:
• the information Mr X provided and discussed the complaint with him;
• the information provided by the Council or available on its website;
• relevant law and guidance, as set out below; and
• our guidance on remedies, available on our website.
8. 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

Relevant law and guidance

Assessment of needs

9. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs.
10. Where the care planning process has determined a person’s needs are best met in a residential care home, the council must provide for the person’s preferred choice of accommodation, subject to certain conditions.

Care costs – residential care

11. Sections 14 and 17 of the Care Act 2014 provide the legal framework for charging for care and support. 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 (the Guidance).
12. The Guidance says the council must carry out a financial assessment of what the person can afford to pay towards the cost of their care and, once complete, it must provide a written record of the assessment. It should explain how the assessment has been carried out and what the charge will be.
13. The Guidance at paragraph 8.9 says where a person lacks capacity, they may still be assessed as being able to contribute towards the cost of their care. Councils must have a policy that sets out how they carry out financial assessments in such cases. “Where possible, [councils] should work with someone who has the legal authority to make financial decisions on behalf of a person who lacks capacity. If there is no such person, then an approach to the Court of Protection is required”.
14. The Guidance at paragraph 8.15 says the council should establish whether the person needing care has capacity to take part in the care plan and financial assessment. If the person lacks capacity, the council must find out if there is someone who has any of the following as they may need to be consulted:
• Enduring Power of Attorney (EPD;
• Lasting Power of Attorney (LPA) for Property and Affairs;
• Lasting Power of Attorney (LPA) for Health and Welfare;
• Property and Affairs Deputyship under the Court of Protection; or
• Any other person dealing with the person’s affairs, for example, someone who had been appointed by the Department of Work and Pensions (DWP) to deal with the person’s benefits.

Financial assessment

15. People who have over the upper capital limit (currently £23,250) 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 (currently £14,250) they will not need to contribute to the cost of their care and support from their capital.
16. The Guidance says the council can carry out a “light touch” financial assessment, where it is satisfied on the basis of evidence the person provides that they can afford, and will continue to be able to afford, any charges due. Examples of cases where this may be appropriate include where the person has:
• property worth clearly more than the upper capital limit; or
• savings worth clearly more than the upper capital limit.

12 week property disregard

17. The Guidance at Annex B says the council must disregard the value of the persons main or only home when calculating how much capital they have for the first 12 weeks after they first enter residential care as a permanent resident.

Deferred payment agreement

18. The Guidance at Annex J2 allows the person to enter into an agreement with the council to defer the payment of their care costs, which prevents them having to sell their home in their lifetime to meet the costs of their care. The council will pay the care costs and will be repaid, with interest, when the property is later sold.

Deprivation of capital

19. Where a person has intentionally deprived themselves of capital in order to reduce the amount they need to pay towards their care, the council may be able to treat them as still owning the asset. The Guidance at Annex E sets out how councils should consider this.

Recovery of debts

20. The Guidance says where a person has accrued a debt, the council may use its powers under the Care Act 2014 to recover that debt. This may include court action, if other reasonable alternatives for recovery have been exhausted.

Respite care

21. Where a person goes into residential care on a temporary basis, for example, for respite, this must be recorded in their care plan. If the temporary stay becomes permanent, the financial assessment should be based on their permanent residence from the date their care plan was amended, in agreement with the person or their representative.
22. The Guidance at Annex F says the council may choose not to charge for the first eight weeks of a stay in a residential home, whether or not the stay is intended to be temporary. After eight weeks, if it intends to charge, it must carry out a financial assessment.

Mental capacity and best interest decisions

23. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
24. 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. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
25. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

Lasting Power of Attorney

26. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA 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' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
27. There are two types of LPA.

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

28. An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.

Court-appointed Deputies

29. If there is a need for continuing decision-making powers and there is no relevant EPA or LPA, the Court of Protection may appoint a deputy to make decisions for a person. The Office of the Public Guardian (OPG) oversees the work of attorneys and court-appointed deputies and produces detailed guidance for them.

This Council’s policies

30. This Council’s policy on charging for residential care, available on its website says:

If a person has lost mental capacity we cannot do a financial assessment for them unless there is someone who has the legal right to manage their money and represent them.

31. Its booklet “Help to pay your care home fees”, which is given to service users and their families, says

“If you have no Lasting Power of Attorney in place and a mental capacity assessment deems you as not having capacity, then someone else must make an application for Property and Affairs Deputyship to the Court of Protection”.

32. If there is no one to represent them the Council may apply for the legal right to manage how they pay for their care.
33. This Council’s complaints policy says it will usually respond to complaints at stage 2 of its process within 20 working days. If it is not able to do so, it will write to the complainant with a new date for responding.

What happened

34. Mrs Y lived on her own at home, with a care package and support from her son, Mr X. She had a dementia diagnosis and there were concerns about her safety. In February 2022, it was agreed Mrs Y would move to a care home for respite for 4 weeks, during which time the Council would carry out a fresh assessment of her care needs.
35. That assessment was carried out in March 2022 and decided Mrs Y should remain in the care home permanently. A mental capacity assessment (MCA) determined that Mrs Y did not have capacity to make the decision to remain in a care home. At a meeting to discuss what was in Mrs Y’s “best interests”, Mr X and the professionals involved all agreed Mrs Y should remain in the care home.
36. There had been some discussions about the costs of Mrs Y’s care prior to her moving to the care home. Mr X said he had been managing his mother’s finances for some time, using a joint bank account. He said she had capital of around £20,000 in the bank account. Mrs Y’s former home had been put into a family trust, and for almost a year before moving into the care home Mrs Y had lived in rented accommodation, with the rent covered by the income from renting out her former home.
37. Mr X asked the Council to carry out a financial assessment. The Council sent him its Help to pay your Care Home Fees Booklet April 2021 but said that it could not carry out a financial assessment. This was because Mr X did not hold an LPA for Property and Finance. It said he would have to apply to the Court of Protection to be appointed a deputy.
38. Mr X was unhappy about this and, when he could not resolve the matter with officers, made a formal complaint. He said he assumed Mrs Y would need to pay her care fees in full but needed a financial assessment to determine whether the 12 week property disregard applied. He pointed out that he held LPA for Mrs Y for Health and Welfare, was managing her money using a joint bank account, and he had access to the family trust.
39. In mid April, after two telephone conversations to discuss Mr X’s concerns, the Council responded at stage 1 of its complaints process. It said its finance team could not speak with Mr X or deal with him to complete a financial assessment unless he had applied for a deputyship. This was because general data protection rules (GDPR) meant that a person must have or obtain the right to deal with property for someone who has lost capacity to manage their own affairs. If there was no-one who could apply for this the Council could instruct solicitors or apply for a deputyship itself. In the meantime, the Council could make an arrangement with the care home about the care fees and Mr X could ask the Court of Protection for an interim agreement to release funds to pay the care fees.
40. Mr X responded that:
• The Care and Support Statutory Guidance (the Guidance) did not state that he had to have an LPA or deputyship before asking for a financial assessment.
• The only reference he had found to this in relation to GDPR was a note on the Gov.UK website which said that although there was no specific mention of mental capacity in the GDPR or the Mental Capacity Act 2005, it was reasonable that an attorney with authority to manage an individual’s property and affairs could consent to processing personal data.
• He did not need permission from the Court of Protection to pay Mrs Y’s care fees as he had a joint account with her.
41. In further correspondence at stage 1, the Council:
• Confirmed that if Mrs Y owned her own home, she may qualify for the 12 weeks property disregard.
• Confirmed that it was paying Mrs Y’s care fees whilst Mr X applied for deputyship.
• Provided information about the fees due for the period of respite care prior to the decision that Mrs Y needed permanent residential care.
42. Mr X asked the Council to consider the complaint at stage 2 of the process on 15 May 2022. The Council acknowledged receipt of the complaint and said it would respond by 10 June. On 9 June, it wrote to Mr X to say it was still investigating but expected to be able to respond by 23 June. It responded on 1 July 2022.
43. It’s stage 2 response repeated its position that the Guidance and GDPR requirements meant that if the person needing care had lost capacity, their representative would need either an LPA for property and finance or be appointed as a deputy. In addition, it said GDPR meant it would not be able to share the outcome of a financial assessment with Mr X, and therefore it would not be able to tell him how much Mrs Y needed to pay towards her care.
44. It added:

“Putting your mother’s placement at risk by not paying care home fees could be a safeguarding issue, as you are not acting in your mother’s best interests in not making every effort to obtain appropriate legal representation and therefore allow the full financial assessment process to happen. This is a legitimate concern which the Local Authority may need to respond to. Finance colleagues advise it is not lawful to maintain a person’s placement entirely at public expense. Under the Care Act 2014, a financial assessment must be undertaken. Local Authorities must ensure that appropriate legal representation is in place for any client who lacks mental capacity”.

45. Mr X was very offended by the suggestion that he was not acting in his mother’s best interests given:
• the level of care he had provided to his mother for two years before she went into the care home; and
• his willingness to assist with the financial assessment and pay the care fees from the joint account.

He asked the Council to retract this statement and apologise.

46. After further correspondence in which the Council maintained its position, Mr X applied for deputyship. He was advised this would take six to nine months. He incurred an application fee of £371, a fee for the GP to complete their part of the application of £120 and sundry costs of £20. He will incur further fees for the duration of the deputyship, currently £320 per annum. He also said there was a considerable amount of time and effort involved in making the application.
47. In response to my enquiries, the Council explained the reasons for its policy to require either an LPA for property and finance, or a deputyship before carrying out a financial assessment. It said:
• the Guidance at paragraph 8.9 required it to work with someone who had legal authority to manage the person’s finances where they did not have capacity to do so themselves, and specifically stated that “If there is no such person, then an approach to the Court of Protection is required”;
• it had sought legal advice, which confirmed this was the position;
• its policy ensures it protects the vulnerable and the public purse;
• its policy ensures it remains compliant with GDPR requirements in terms of sharing personal financial information; and
• seeking legal authority at the outset avoided “stop start” delays later on.
48. The Council said its policy had not been challenged before, but accepted that there may be cases where it would need to consider exceptional circumstances on an individual basis, and make any appropriate exceptions. It further accepted that, where it was not able to depart from its policy, it should explain its reasons, which it had not done in Mr X’s case. It said it will implement further training for staff should future challenges occur and endeavour to better communicate with individuals the rationale for its decisions.
49. It explained it could not make an exception in this case because, although Mr X has access to Mrs Y’s funds through the joint bank account, he did not have legal authority to make financial decisions on her behalf and would not necessarily be able to access all financial information needed for the financial assessment. For example:
• the Council would need to consider the circumstances of the transfer of Mrs Y’s former home into a family trust, for which it may wish to consider legal documents relating to the transfer, but Mr X would not have a legal right to documents prepared by a legal adviser for Mrs Y. This information would be needed to make decisions about whether the 12 week property disregard applied and about whether there had been a deprivation of assets;
• Mr X would not have the legal authority to enter into a deferred payment agreement, if needed.
50. The Council recognised that the LPA health and welfare did mean Mr X could make decisions about Mrs Y’s care, and that he could access her personal data relating to her health and welfare. But he did not have the right to personal financial data, and therefore it would only be able to share general information about the financial assessment with him.

Respite care

51. Mr X said the Council initially told him his mother could have eight weeks of respite care. When it carried out the needs assessment, it reduced this to four weeks, but it later reduced it to three. It charges a fixed contribution for respite care, so a financial assessment was not needed to determine Mrs Y’s contribution to her care costs for that period.
52. In response to my enquiries, the Council explained that it had agreed to 8 weeks of respite annually for Mrs Y when it reviewed her care and support plan in January 2022. This was to cover periods when Mr X was away. In February 2022, it agreed to four weeks of respite, in light of a deterioration in Mrs Y’s condition, to allow for a further needs assessment. That assessment determined that Mrs Y should remain in the care home, and it was entitled to treat the date of that decision as the start of her permanent stay. However, it recognised that it had not explained to Mr X this would mean the respite period was reduced to three weeks, and therefore agreed to honour the original agreement for four weeks respite. It sent an email to Mr X to confirm this on 11 August 2022.

My analysis and findings

53. Where someone has capital in excess of the upper limit (£23,250), a council can carry out a “light touch” financial assessment and confirm they need to pay their care costs in full until their capital falls below that limit.
54. In this case, Mrs Y had £20,000 in her bank account, which is below the upper limit, and the Council will need to carry out further enquiries to decide whether to treat her as owing her own home, or a share of it, as it is in a family trust. On this basis, the Council was entitled to decide a light touch financial assessment will not be sufficient, and that a full financial assessment is needed to confirm what she needs to pay towards her care and whether the 12 week property disregard applies.
55. Mr X argues that the Guidance at paragraph 8.15 says the council can deal with those who have one of the authorities listed, which includes an LPA for health and welfare, which he has for Mrs Y. However, paragraph 8.9 does state that, in relation to financial assessments, councils should work with someone who has the legal authority to make financial decisions on behalf of a person who lacks capacity. The LPA Mr X has means he can make decisions about Mrs Y’s health and welfare, including whether she should remain permanently in a care home, but it does not give Mr X the legal authority to make financial decisions. Paragraph 8.9 says: “If there is no such person, then an approach to the Court of Protection is required”. On this basis, I am satisfied the Council’s policy is in line with the Guidance.
56. That said, councils should not have blanket policies. Councils should always retain discretion to depart from a policy, where appropriate, in the particular circumstances of a case. In this case, there is no clear record to show how the Council considered whether to exercise discretion, and the Council it accepts it did not properly explain why it could not make an exception to its policy in Mr X’s case. This was fault, which caused Mr X frustration, and meant he was put to additional time and trouble pursuing the matter with the Council.
57. In response to my enquiries, the Council has considered whether to make an exception to its policy and set out its reasons for not agreeing to do so in this case. Its reasons are briefly set out in this decision statement and are set out in more detail in its response, which I have shared with Mr X. On this basis, I am satisfied the Council has now properly considered whether to make an exception to its policy in this case, and there was no fault in the way it considered this.
58. The Council accepted it delayed in responding to Mr X’s complaint at stage 2 and failed to write to him to explain it was not able to meet the second deadline, in line with its policy. This was fault, which added to Mr X’s frustration.
59. The Council also accepted it failed to withdraw its statement implying that Mr X was not acting in his mother’s best interests and apologise at the earliest opportunity. Although Mr X had challenged its policy of requiring a deputyship, there were no grounds for concluding he was not seeking to act in his mother’s bests interests. What was needed was for the Council’s finance team to explain to him why a deputyship was needed in this case. In the circumstances, the Council’s failure to reconsider its position and give this explanation, was fault, which caused Mr X distress.
60. The Council offered to pay Mr X £200 for the faults set out in paragraphs 58 and 59, and to apologise for injustice caused by the fault set out at paragraph 56. I consider the payment should be slightly higher and will set out my recommendation below.
61. There was some confusion about the time Mrs Y was regarded as being in respite care, which affects what she had to pay towards to cost of that period of care. The Council was entitled to start the permanent stay from the date of the decision that a permanent stay was needed, which was after three weeks in the care home. It accepted it had not communicated the position clearly to Mr X at the time and has already agreed to treat the first four weeks of Mrs Y’s stay as being respite care. I do not consider the communication issue was sufficient to amount to fault and, in any case, the Council’s action has remedied any injustice caused.

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Agreed action

62. Within one month of the date of the final decision, the Council will:
• apologise to Mr X for the injustice caused by its failure to explain its reasons for not departing from its usual policy about requiring an application for deputyship, the delay in responding to the complaint at stage 2, and its failure to offer a timely withdrawal of its statement that Mr X may not be acting in his mother’s best interests;
• pay him £300 for the distress, frustration and additional time and trouble caused.
63. Within three months of the date of the final decision, the Council will:
• provide guidance or training for relevant staff about the need to consider whether it should depart from its charging policy, keep a clear record of its reasons for not doing so in a particular case, and to explain its reasons; and
• review its complaints process to ensure that complaints are responded to within its published timescales where possible, and that relevant staff are prompted to update complainants where target timescales cannot be met.

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Final decision

64. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy the injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman