The Ombudsman's final decision
Summary: Mr X complained about the way the Council carried out a financial assessment for his mother’s residential care. We found fault with the way the Council treated the joint bank account of Ms M and her partner in the financial assessment. The Council has agreed to apologise and to recalculate the date on which Ms M’s capital reached the upper threshold for financial support by the Council. The Council will also share the lessons learned with relevant staff.
The complaint
The complainant, whom I shall call Mr X, complained on behalf of his mother, whom I shall call Ms M, and her partner, whom I shall call Mr M. Mr X complained that the way in which the Council carried out his mother’s finanicial assessment was wrong. Furthermore, he said that when he made a complaint about this to the Council, the person who dealt with his complaint was the same person who had been involved in his financial assessment, which meant the investigation was not independent enough.
The Ombudsman’s role and powers
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) 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)
How I considered this complaint
I considered the information I received from Mr X and the Council and carried out an interview with the officer who dealt with Mr X’s complaint. I shared a copy of my draft decision statement with Mr X and the Council and considered any comments I received, before I made my final decision.
What I found
Relevant legislation and guidance The Care Act 2014 says that a council may make a charge for meeting a person’s social care needs. The Act says that, where a council thinks it would charge the adult for meeting needs, “it must assess the level of the adult’s financial resources” and “the amount (if any) which the adult would be likely to be able to pay towards the cost of meeting the needs for care and support”.
The Care Act Guidance says in Annex B.12 that: “Where a person has joint beneficial ownership of capital, except where there is evidence that the person owns an unequal share, the total value should be divided equally between the joint owners and the person should be treated as owning an equal share. Once the person is in sole possession of their actual share, they can be treated as owning that actual amount”.
What happened Ms M went into residential care. Ms M and her partner had two joint bank accounts that were in both their names. In April 2020, the Council did a financial assessment and calculated Ms M’s capital as: Premium Bonds in her own name of £30,000.
50% joint Virgin Savings £35,000.
50% joint Virgin Current £36,765.
Total capital £65,882.50.
The Council only treated half of the amounts in the joint accounts above as belonging to Ms M, with the other half of the amount (£35,882.50) belonging to Mr M.
As Ms M’s capital reduced, due to payment of her care home fees, there was another financial assessment in 2021 to calculate if her capital had reduced to below £23,250. Mr X says that from 3 October 2021, his mother’s remaining capital was below £23,250: Premium bonds: £20,000 Her remaining share in the joint accounts: £2,289.
Mr X said his mother had spent £65,000 on care home fees and most of the capital remaining in the joint accounts from 3 October 2021 belonged to Mr M. However, he said the Council simply treated half of the money in the joint accounts in October 2021 as belonging to his mother. As a result, the Council concluded his mother was still above the threshold of £23,250 in October 2021 and should therefore continue to pay for all her care.
The officer I interview told me that: Money in a joint account should always be seen as belonging to both parties equally and he could not envisage a situation where the Council would treat money in a joint account as belonging more to one person.
He was not involved in Ms M’s financial assessment and was therefore sufficiently independent to investigate and respond to the complaint.
Analysis Paragraph 12 of Annex B of the Care Act Guidance says that where a person has joint beneficial ownership of capital, this is divided equally “except where there is evidence that the person owns an unequal share”. As such, the Council’s view that money in a joint account should always be seen as belonging to both parties equally, is wrong.
The Council’s financial assessment in 2020 concluded that £35,882.50 in the joint account belonged to Mr M and the other £35,882.50 belonged to Ms M. The written record / outcome of the assessment is evidence this amount belonged to Mr M and should therefore not be taken into account in Ms M’s subsequent financial assessments.
In the subsequent financial assessment in 2021, Mr X provided evidence that Ms M had spent most of her £35,882.50 on care home fees and that most of the money remaining in the joint account belonged to Mr M. However, the Council disregarded the evidence provided and simply concluded that half of the remaining funds in the joint accounts belonged to Ms M. This is fault.
The Council has rightfully indicated that it would have been advisable for a client in such a situation to transfer their respective share into separate accounts to avoid such situations / confusion in future.
The Council officer who investigated Mr X’s complaint was sufficiently independent.
Agreed action
I recommended that the Council, within four weeks of my decision: Provides an apology to Mr X, Ms M and Mr M for the faults identified above and the distress these have caused them.
Recalculates the date on which Ms M’s capital reached the £23,250 threshold and adjusts any contributions accordingly.
Ensure that its officers and managers involved in financial assessments are aware of the above findings and guidance and apply this accordingly.
The Council has told me it has accepted my recommendations.
Final decision
For reasons explained above, I have upheld this complaint.
I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case.
Investigator's decision on behalf of the Ombudsman