Decision : Upheld
Decision date : 30 Oct 2018
The Ombudsman's final decision:
Summary: Mrs R complains that the Council did not give her mother adequate information about the cost of homecare before her care package began. She says it was also wrong to refuse the payments that her mother makes to her for care as an allowable expense. The Ombudsman considers that the Council was at fault both in its advice on costs and how it carried out the financial assessment. The Council has agreed only to charge Mrs S the costs of which she was notified, to carry out a fresh financial assessment and review its policy.
- Mrs R complains that the Council:
- gave her misleading information about the level of contribution her mother might have to make towards her homecare package;
- should not have charged her mother for homecare before undertaking a financial assessment;
- wrongly decided that her mother’s payments to her for care should not be treated as allowable expenditure in the financial assessment, and that she should pay the full cost of her care.
- reimburse the charge her mother incurred for homecare; and
- revise its decision to charge her the full cost of homecare.
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 a council’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
- Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25%. The Council can take a person’s capital and savings into account subject to certain conditions. If a person incurs expenses directly related to any disability he or she has, the Council should take that into account when assessing his or her finances. (Care Act 2014 Department for Health, Fairer Charging Guidance 2013, and Fairer Contributions Guidance 2010)
- Annex C of the Care and Support Statutory Guidance states:
“40) In assessing disability-related expenditure, local authorities should include the following. However, it should also be noted that this list is not intended to be exhaustive and any reasonable additional costs directly related to a person’s disability should be included:
…(c) costs of any specialist items needed to meet the person’s disability needs, for example:
(i) Day or night care which is not being arranged by the local authority.”
The Council’s charging policy
- The Council’s policy sets the following conditions on allowing privately arranged care as disability-related expenditure.
TYPE OF EXPENDITURE
REASONABLE WEEKLY ALLOWANCE
Privately Arranged Care
Only if WCC not funding & the need has been identified by the Social Worker in the care plan
If provided by a family member or friend
Care paid by Direct Payment
Actual costs up to £25.00pw
Receipts or invoices for at least 4 weeks
What I found
- Mrs S is in her 80s and lives in her own home. She has very limited eyesight which significantly affects her mobility and her ability to look after herself. She also has very limited hearing. Due to her disabilities, Mrs S has not left her home for three years.
- Mrs S’s daughter, Mrs R, lives in her own home, but visits her mother most days and provides regular care and support to her mother. Mrs S pays her daughter £850.00 per month for this care. Mrs R says she is registered as self-employed and completes her tax return and pays National Insurance in respect of this income.
- Mrs S considered that she needed some further support in addition to what her daughter could provide. Her daughter also has her own health problems which can affect her ability to help her mother.
- Mrs R therefore contacted the Council to arrange an assessment to determine what eligible needs her mother might have and what support she might be entitled to. The Council sent Mrs R a Client Charging Notification (CCN) form to complete. This stated that Mrs S may need to make a financial contribution from the date on which the service commences, that there would be a provisional charge of £22.00 per week and that the full charge would be determined by means testing. Mrs R was aware that there may be a charge but says there was only a brief discussion on this and she understood the charge would be nominal.
- The Council undertook a Combined Needs Assessment which was concluded in early March 2017. The assessment noted that Mrs R visits her mother 5-6 times a week and provides a wide range of support including: help with communication, bills and correspondence; medication; dressing; bathing; managing toilet needs; cleaning; preparing a daily evening meal; and shopping,
- The assessment found that Mrs S was unable to meet the following outcomes:
- managing and maintaining nutrition;
- maintaining personal hygiene;
- managing toilet needs;
- being appropriately clothed;
- being able to make use of the home safely; and
- maintaining a habitable home environment.
- Mrs R complains that the Council did not make it clear to her or her mother that she might incur significant charges for her care package. She considers that the Council should have told them how much Mrs S would have to pay before the care package started. However, the Council considers it provided sufficient information to Mrs R and Mrs S about charges because the CCN form states that there may be a charge from the time the service starts, subject to means testing.
- The Care Act Guidance does not say that a financial assessment must be concluded before the service provision starts. However, it does state that:
“A council’s approach to charging for care and support needs should be clear and transparent, so people know what they will be charged. Councils should ensure there is enough information and advice available to ensure that people understand any contributions they are asked to make.”
- The Department of Health also published a series of Frequently Asked Questions in relation to the introduction of the Care Act. Its response to “Question 102 From what date can local authorities charge people?” was (my underlining):
“Under the Care Act, local authorities have powers to charge for care and support to cover the costs they incur when contracting for care. The local authority can, therefore levy charges from the date when it starts to incur costs to meet a person’s care and support needs. However, we would usually expect the local authority to work out how much the adult can afford to pay for their care and support before the local authority collects any money from them…”
- It seems to me therefore that there is an expectation that councils should generally undertake financial assessments and inform service users of the likely level of charges prior to commencing and charging for a service.
- In this case, Mrs R had provided Mrs S’s financial declaration well ahead of the provision of the home care service. The Council had also assessed Mrs S’s eligible needs and decided on a personal budget and the service to be provided before commissioning the care.
- I see no good reason therefore why the Council should not have informed Mrs S of the likely amount that she would be charged before the care package started, even if this were a provisional figure at that stage. Moreover, given that Mrs S cancelled the package immediately on learning that she would have to pay the full cost of care, it seems clear that she would not have gone ahead with the care package had she been told this in advance.
- I consider that it would therefore be reasonable for the Council only to charge Mrs S the £22.00 provisional weekly charge which she was informed of, totalling £66.00 for three weeks in April 2017, rather than the £432.60 charges for which Mrs S was invoiced.
- Mrs R considers that the Council was wrong not to treat the £850.00 monthly payment that her mother makes to her as allowable expenditure. However, the Council considers that not allowing this expenditure is consistent with its policy and the Care Act Guidance. It also considers the sum to be higher than the Council would pay for a comparable package.
- I consider that Council has not carried out the financial assessment correctly in respect of the payments to Mrs R.
- The Council’s policy says that it will not allow payments to family members. I consider that this is incorrect. The Direct Payments Regulations generally exclude payments to close family members who co-habit with the person with support needs. But there is no such restriction on making payments to family members who live separately and provide care to meet identified care needs.
- The Council’s policy also says it will only allow expenditure on privately arranged care to a weekly maximum of £25.00. This seems to me to be an arbitrary figure. I consider that if the privately arranged care is meeting an identified need, then the full cost of that care should be allowable.
- In respect of the payments to Mrs R, therefore:
- I see no reason why Mrs S should not be able to pay Mrs R to meet an identified need;
- Mrs S’s Combined Needs Assessment clearly refers to a range of needs which Mrs R has been meeting;
- even if the Council considers the £850.00 monthly payment to be excessive (equivalent to around £28.00 or 1 hour 20 minutes care daily at the Council’s rate of £20.60), it is still not reasonable for the Council to disallow the whole sum;
- the Council should instead have determined the value of the care that Mrs R was providing to her mother and allowed an amount equivalent to this as a deduction from Mrs S’s income.
- The Council has agreed the Ombudsman’s recommendation that:
- it cancel the £432.60 invoice for charges that Mrs S incurred in April 2017 and instead issue Mrs S with a bill for £66.00;
- it carry out a fresh financial assessment taking into account the value of the care that Mrs R was providing to her mother;
- if that assessment indicates that Mrs S would have been eligible for care at a lower cost and it appears that she would likely have used the care package, it should consider what injustice this has caused her and Mrs R, and take action as appropriate; and
- within three months, it review its policy in relation to the applicable guidance and legislation in respect of deductions for payments to family members.
- I have closed my investigation into Mrs R’s complaint on the basis that the agreed actions represent a suitable remedy for the injustice caused to Mrs S.
Investigator's decision on behalf of the Ombudsman