Summary: Ms A complains the Council did not properly advise Mrs X about care contributions her son Mr X had to pay when he moved into residential care. We found fault by the Council. It has agreed a suitable remedy.

The complaint

1. Ms A complains on behalf of Mr X that the Council failed to advise his mother, Mrs X who is his representative, regarding his care contributions when he moved into residential care. The Council offered to reduce the charge by 50%, but Ms A complains this still has a significant financial impact on Mr X and it should write off all the charges up to August 2023.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have considered the information provided by Ms A and Mrs X. I have made enquiries of the Council and considered its response. Ms A and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Legislation and guidance

Direct payments

5. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.

Charging for permanent residential care

6. 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.
7. 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.

What happened

8. Mr X is a disabled adult who lacks mental capacity to make a decision about his care. He was living at home with his mother and receiving care for his needs. Mr X’s care was funded via direct payments.
9. In 2022 Mr X moved from home to a residential care home. The Council asked Mrs X to complete a financial assessment form on Mr X’s behalf so that it could decide what contribution he should pay. Mrs X completed the form but did not receive a response.
10. In October 2022 the Council sent a notification letter to Mr X at his care home advising that he needed to pay contributions for his care. The Council did not write to Mrs X and the care home did not pass on a copy of the letter.
11. In late July 2023 the Council told Mrs X that Mr X had care contributions to pay.
12. Mrs X complained to the Council that Mr X only received employment support allowance and that the Council had advised her this was for his personal needs. It had not advised her that Mr X would need to make a contribution to his care costs. Now, more a year after he had moved in, the Council wrote to her stating Mr X must pay a contribution. She was now aware the Council had sent a letter directly to Mr X. Mrs X asked the Council to consider a claim for disability related expenditure for Mr X and asked it to consider writing off the care contributions to the date it notified her.
13. The Council replied that Mr X had received adult care services for some time. The Council charged for these care services in all but exceptional circumstances. The Council said that when talking about contributions for the cost of care, the social worker “would normally let you know that adult social care services are chargeable and that an assessment would be completed.” It also said that before Mr X moved he had received direct payments and this would suggest that Mrs X was aware that adult social care was chargeable.
14. The Council explained further that Mrs X had spoken to the social worker a few months after Mr X had moved and had completed the financial assessment form. The Council said it had incorrectly stated it sent a letter regarding the care contributions to Mrs X. It had not sent the letter to Mrs X but to Mr X. The Council upheld this part of Mrs X’s complaint. It apologised for this. It said it had not changed the invoice address.
15. The Council partially upheld the complaint and said it would write off 50% of the charges. It also said it would remind all social workers that they should be clear about who its invoices were addressed to, and this should be kept up to date.
16. Ms A complained further on Mrs X’s behalf that she noted the Council’s offer of a 50% reduction in the charges. But she asked the Council to consider reducing the charges in full. She said it was due to the Council’s error that Mr X was now responsible for the debt. She said Mrs X had followed the correct policies and procedures when Mr X moved. However, the Council now expected Mr X to pay the arrears of the care contribution from his very limited personal income. In her view this would have an impact on the social aspect of Mr X’s life, adding a financial restriction through no fault of his own.
17. The Council replied repeating its earlier response that it considered Mrs X would have been aware that adult social care services were chargeable. It accepted that it had sent invoices to the incorrect address and that it appeared the care home had not passed these on to Mrs X. Therefore, to recognise its error the Council had offered to reduce the charges by 50%.

Analysis

18. I consider the Council was at fault because it sent the financial assessment to Mr X in error. It also sent invoices to his address in error. As a person who does not have mental capacity to make decisions about his care, he would not have been able to understand or deal with these. The Council has accepted it was at fault here. This led to a build up of financial contributions and arrears.
19. I disagree with the Council’s view that Mrs X would have known Mr X would be charged because he had received direct payments previously and paid a contribution. While Mrs X was aware about direct payments while Mr X was at home, this would not mean she would known that charges would be made or understand how contributions would be calculated for a different type of care and placement. In my view it is not reasonable to expect Mrs X to have known that Mr X would need to pay a care contribution.
20. In its response to a draft version of this statement the Council said it considered it had discussed the financial contributions with Mrs X when it carried out the financial assessment. However, it accepted it did not have file notes recording this discussion.
21. The Council does not appear to have considered the impact on Mr X of paying significant arrears of charges on his limited income of under £30 per week. This is fault.

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Agreed action

22. The Council has agreed my recommendations that within one month of my decision it will:
• Waive the care charges for the period before it sent its notification letter to Mrs X.
• Remind social workers that they should be clear about who the Council addresses invoices for financial contributions to, and this record should be kept up to date.
23. The Council should provide us with evidence it has complied with the above actions.

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Final decision

24. The Council has agreed my recommendation to remedy its fault. I have completed my investigation and closed the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman