Decision Date: 23rd July 2021
What happened
Mr & Mrs E had lived in their own property for several years, each owning 34.5% of it in addition to the 15.5% owned by each of their daughter ‘F’ and son-in-law.
In 2015 the Council began providing care for Mr E as he had dementia. At that time, his financial assessment determined he did not have to contribute to his homecare costs. In 2016, Mrs E was admitted to hospital for a brief period, during which Mr E went into a care home on a short-term basis. Subsequently, the family agreed it would be best for Mr E to move to a permanent care home close to his daughters.
Around this time, the family asked the Council what would happen with Mr E’s care charges if Mrs E were to sell their home in order to buy a property closer to their daughters and the new care home. A social worker said a finance officer had “advised that if there was any capital gained this would need to be seen as 50/50, also as long as the property they purchase has Mr [E]’s name on the deeds [t]his would be ok, though if not then his 50% would need to be factored in with the financial assessment. Also if the monies were to remain in the account the CRAG rule states this can happen for up to 26 weeks, before 50% is taken into consideration for his contribution, though if there is a delay then finance need to be made aware and they can make some allowances though these discussion[s] need to take place between the family and finance.”
On 23 January 2017, a care and support plan was completed. It made no reference to any financial implication of the potential sale of the property. The Council then assessed Mr E’s finances. As Mrs E was residing in the family home, the Council disregarded its value from the assessment. In May 2017 Mr E moved into a new residential care home in London. Northamptonshire County Council agreed to continue funding and co-ordinating his social care under ordinary residence rules.
On 3 October 2017, a review of Mr E’s care and support needs found that all parties were happy with the then current situation. On 6 October 2017, Mrs E sold the house for £240,000. Mr and Mrs E’s net share of the proceeds was £163,000. £149,000 of this was used to purchase a flat in London for Mrs E, to be close to Mr E. F took out a £215,000 mortgage to facilitate the purchase, and paid the balance of £58,000. [The report does not say whose names were on the title, but normally a mortgagor MUST be shown as having legal ownership of the property to some degree – unless this whole financial arrangement was a loan to her mother?]. A year later, in September 2018, the Council’s Debt Recovery Team contacted Mrs E’s other daughter, G, stating there were outstanding invoices for Mr E’s care. G gave the Council Mrs E’s new address, and sent cheques to the Council. [There is no information in the report as to why G had anything to do with the charges; it is not stated that G had power of attorney, which we find frustrating.]
In November 2018, Mrs E wrote to the Council asking for financial support with: £140 per month for Mr Es incontinence pants; £37 every 6 weeks for a diabetes-related chiropodist visit; and the costs associated with taking Mr E to multiple appointments. The Council’s response stated that for 2018/19, Mr E’s Personal Expense Allowance was £24.90 per week and no further allowances for specific expenses could be made but that Mr E might be entitled to support from the NHS and that Mrs E should ask the care home to request a continence assessment from the District Nurse.
It was unclear from the report what action Mrs E took following this advice, however. In April 2020 Mr E passed away. Mrs E notified the Council, who undertook a financial assessment.
This noted that having jointly owned his former home, and based on a 25% [for some unknown reason not specified in the report] share of it, Mr E would have been entitled to £60,000 of the sale proceeds. Also that as Mr E’s name was not on the deeds of the new flat, his share of the sale proceeds should be treated as notional capital. As such it decided that Mr E was liable for the full cost of Mr E’s care from the 6th October 2017, when his home was sold, until the 8th August 2018, when his capital would have fallen below the threshold. Therefore the full amount due amounted to £40,805.15 which the Council asked Mrs E to pay.
Mrs E stated she had understood she would have no liability for Mr E’s care as long as she bought a new home within six months, and that she could not afford to pay the allotted sum without selling her home. She was greatly distressed by the Council’s communication. The Council stated it would not disregard Mr E’s share of the sale because his interest had not been protected by registering him as a joint owner of the new flat. Mrs E then complained to the LGO. The Council then accepted it should have reviewed Mr E’s needs annually, and that the financial assessment was based on the wrong ownership share. It maintained that it was entitled to ask Mrs E for the full care cost but decided as a gesture of “goodwill” not to do so.
What was found
The LGO said the Council gave the correct advice that Mrs E needed to buy a new property within six months in order for the proceeds to be disregarded automatically from Mr E’s financial assessment.
Regarding the request for repayment of care home charges: the LGO highlighted it was correct for the Council to disregard the value of Mr E’s former home while Mrs E was still living there. Also, that as Mr E’s name was not on the deeds of the new flat, the Council was entitled to consider whether this should be regarded as a “deprivation of assets” and therefore whether charges should be payable, on the basis that Mr E’s share could be treated as notional capital.
However, the LGO highlighted that the mere fact that Mr E’s name was not on the new deeds did not mean the Council could automatically treat his share of the sale proceeds as notional property, but that they should consider whether Mr E intentionally decreased his assets in order to reduce his care costs. However, the Council had not undertaken this essential part of the assessment, which was fault.
The LGO considered it was clear Mrs E needed to use both hers and Mr E’s share of the proceeds to be able to purchase a new home closer to Mr E’s care home as indicated by her need for financial support from her daughter. The LGO stated that “any reasonable assessment, using the criteria set out in the guidance, would have concluded that there was no basis for the Council to recover the full cost of Mr E’s care from Mrs E.” As such, the failure to consider this matter properly was fault, which caused Mrs E great distress at a time when she was grieving.
However, as the officer referred to the rules in the CRAG Guidance which had been replaced by the Care Act Guidance a year before, they were citing the incorrect guidance.
The LGO found no fault regarding the Council’s suggestion that the NHS may provide chiropody or incontinence pants. However, there was fault in the Council’s failure to communicate that Mrs E could come back for further consideration if the NHS would not cover the costs, as well as the Council’s failure to respond to Mrs E’s requests for support to cover costs associated with transporting Mr E to appointments.
Regarding care plan reviews, the LGO noted the Council had failed to review Mr E’s care plan from October 2017 until after he passed away in April 2020, as opposed to conducting annual reviews. Had it done so, it could have addressed Mrs E’s concerns around incontinence pads and petrol costs sooner through a co-ordinated assessment with the NHS.
In light of the injustices caused by the identified faults, the LGO recommended the Council should cancel the £40,805.15 care home charge; apologise to Mrs E for failing to consider the repayment properly, the failure to carry out annual reviews of Mr E’s care and to provide the appropriate support and advice; pay Mrs E £300 for her distress around the prospect of having to sell her home amid the loss of her husband; pay her £320 (£20 x 16 months) towards the costs of appointment transport; and pay £500 in acknowledgment of the distress and hardship she experienced as a result of her unnecessarily incurring the full cost of providing for her late husband’s incontinence care.
Furthermore, the LGO directed that the Council should confirm that it had arrangements in place such that annual reviews are undertaken both within and outside the Council’s area; ensured officers were familiar with the relevant sections of the Care Act Guidance and the Charging Regulations in respect of deprivation of assets and how this should be considered; and ensured that officers are also familiar with the need to consider whether adjustment to the Personal Expenses Allowance may be appropriate when undertaking assessments of care charges and that they are reminded to provide appropriate advice on this.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
This situation illustrates how important it is for a Council to meet the duty in the Care Act 2014 to establish and maintain a service for providing people in its area with information and advice relating to care and support for adults and support for carers (section 4 (1)). The Care Act Statutory Guidance emphasises that the Council must take an active role in providing this advice and ensuring it is up to date, and also stresses the importance of independent financial advice.
The advice that Mrs and Mr E received was not up to date, was incomplete and was not independent. Furthermore, the Council itself was not acting on correct information.
The Statutory Guidance for the Care Act 2014 has a long section (Annex B) on the treatment of capital and income Annex C), and one on the Deprivation of Assets (Annex E). These highlight that Councils must look at the guidance closely AND treat this issue with sensitivity and care. The consequence of not doing this, for Mrs E, was not just error, but also distress.
Annex B of the Statutory Guidance for the Care Act 2014 says at para 47) that whilst there is a duty to disregard specified capital assets for 26 weeks, a council may CHOOSE to disregard for longer if it considers appropriate. One of the types is this: 47(e) Capital received from the sale of a former home where the capital is to be used by the person to buy another home. This should apply from the date of completion of the sale.
It is interesting that intention is important in deprivation of assets. In law, intention relies on the person knowing that a consequence was the expected outcome of their action. Again, this highlights the importance of Councils ensuring a good advice service so that people are informed about the implications of their decisions.
The Personal Expenses Allowance is described in LAC(DHSC)(2023)1 as “…the weekly amount that people receiving local authority-arranged care and support in a care home (residents) are assumed to need as a minimum for their personal expenses”. People must be left with this amount and it should not be spent on aspects of care and support that are assessed as necessary to meet eligible care and support needs, or to meet health needs that the NHS should meet. Again, this is something that residents and their representatives must be made aware of, if the duty to provide advice and information is taken seriously. The LGSCO certainly seems to regard the PEA is the minimum, not the maximum that can be justifiably used for care home residents’ personal needs that are not for adult social care purposes.
As the Ombudsman points out, it is also the case that a timely and sufficient review would have identified the issues of additional expenses incurred for health needs. Guidance says that an initial review should be considered 6-8 weeks after a care plan is put in place and planned reviews should happen at least every 12 months after this. The Guidance highlights that, “Reviewing intended outcomes detailed in the plan is the means by which the local authority complies with its ongoing responsibility towards people with care and support needs. The duty on the local authority therefore is to ensure that a review occurs, and if needed, a revision follows this.” It is not a bureaucratic exercise but an important safeguard.
It is worth all local authorities following the Ombudsman’s recommendations to review all aspects of financial advice that they provide to people going into a care home.
The full Local Government Ombudsman report on the actions of Northamptonshire County Council can be found here: 20 003 586 – Local Government and Social Care Ombudsman