Decision : Upheld
Decision date : 21 Jun 2018
The Ombudsman's final decision:
Summary: Mrs K complains the Council did not tell her it would ask her to pay towards home care it arranged. She also complains about the home care agency it commissioned. We have found fault as we do not consider the Council did enough to alert Mrs K to its charges in good time. This caused Mrs K distress and meant she could not cancel her home care before she incurred charges. As Mrs K went on to cancel the care, the Council has agreed to now write-off those charges.
- I have called the complainant ‘Mrs K’. She complains the Council:
- Did not tell her it expected her to contribute to care charges, after it arranged home care services to her from February 2017. Mrs K says she only learnt she had to pay towards her care in early March 2017. She says it also sent invoices asking for her contribution to care charges which were inconsistent and inaccurate.
- Provided her with poor quality care, delivered by a contracted provider. Mrs K says the care provider did not provide care for the contracted number of hours. There were also examples of poor quality care.
The Ombudsman’s role and powers
- We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
- 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)
- We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely we could add to any previous investigation by the Council (Local Government Act 1974, section 24A(6), 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
- Before issuing this decision statement I considered:
- Mrs K’s written complaint to the Ombudsman and supporting information provided by her, including that gathered in a telephone conversation.
- Exchanges of correspondence between the Council and Mrs K, and between the Council and her son, which considered the issues raised by Mrs K in her complaint.
- Further information provided by the Council in reply to written enquiries.
- Relevant law and guidance as referred to in the text below.
- Comments made by Mrs K and the Council in response to a draft decision statement setting out my thinking about the complaint.
What I found
- I have considered first the Government’s care and support statutory guidance, which supports the Care Act 2014. This is relevant to Mrs K’s complaint alleging the Council gave her inadequate warning she needed to contribute financially to her care. The guidance sets out the following principles:
- The Council can consider asking someone who receives care services to make a financial contribution to the cost.
- The Council undertakes a financial assessment to decide that contribution. This will consider someone’s income and expenses (i.e. it undertakes a means-test).
- In cases where the Council arranges care urgently it can begin providing care before the financial assessment. But usually, the person receiving care should know their contribution before care begins. The guidance says a key principle of the Care Act is that charging should be “clear and transparent, so people know what they will be charged”.
- Care planning requires the Council to first assess someone’s care and support needs. If it decides someone has eligible needs it must then decide what services to provide to avoid any harm caused by it not meeting those needs. It will assess the likely cost of those services and set an indicative budget. It will then set a personal budget when it knows the final cost of care. The Council should share its budgeting decisions with the person affected. It should also set out the cost of care and the client’s contribution towards that in care and support plan. This document also explains how it will meet the person’s needs.
- The guidance says the Council can carry out a financial assessment alongside or separately to care and support planning. But always the Council should explain “how the assessment has been carried out, what the charge will be and how often it will be made”.
The key facts in this case
- The Council assessed Mrs K’s care needs in early December 2016. It found she had eligible care needs as defined by the Care Act. It decided it could meet these by commissioning a care agency, which would arrange for carers to visit Mrs K at home. It proposed they visit Mrs K at home five times a week for two hours a day. It set this out in a care and support plan.
- The Council social worker dated the needs assessment 6 January and the care and support plan on 9 January 2017; i.e. around a month after they met Mrs K. The needs assessment refers to indicative budget for the cost of care of £174 a week. The care and support plan describes the same amount as the personal budget. The care and support plan has a space for “my contribution” (i.e. Mrs K’s contribution). This says zero.
- There are no comments in the Council’s assessment paperwork or its case notes to say if the Council gave Mrs K any information in December, in writing, about its charging policy or the need for a financial assessment. It has no record of its social worker writing to Mrs K after they visited her. So, there is no record it sent a copy of the needs assessment or care and support plan to Mrs K.
- The social worker’s notes suggested they would pass the case for a financial assessment on 9 January 2017. However, emails between the social worker and the Council’s financial assessment team suggest there was no referral before 20 January 2017.
- In an exchange of emails between the social worker and an officer in the financial assessment team the former said Mrs K knew about the charging policy. They also said Mrs K “only received benefits”.
- An officer from the financial assessment team spoke to Mrs K on 6 February 2017. They recorded Mrs K saying she did not know about the charging policy and had not received any form for a financial assessment. The officer sent Mrs K a form to assess her contribution to care costs.
- Meanwhile, the home care service arranged by the Council had begun, effective from 1 February 2017. On 20 February 2017, Mrs K spoke to a duty social worker. They reported her being “unaware” that no financial assessment had completed and “very concerned” at the prospect of backdated charges for care.
- Mrs K completed the financial assessment paperwork and the Council processed this on 1 March 2017. It then wrote to Mrs K saying she should pay around £110 a week towards her care. A first invoice followed dated 16 March 2017. This asked Mrs K to pay around £440 (four weeks charge) for charges incurred in February.
- In between, Mrs K, supported also by her son had complained about the charges to the Council. They said that at the assessment in December 2016 the social worker had not said Mrs K would have to pay towards her care. Mrs K understood the opposite; there would be no charge. On 9 March, Mrs K also asked to reduce her package of care as she said she could not afford the contribution. She asked for two days a week care instead. The Council agreed this on 14 March and re-calculated her contribution at £69 a week.
- A second invoice followed in April 2017, asking Mrs K to pay around £360 for the care charges in March. The lesser amount being due to the decrease in charges after 9 March.
- Mrs K cancelled the care service at the end of March 2017. This was after she made an allegation of theft against a carer. The Council visited her at home in early April 2017 and discussed the care charging policy with her. It considered it had no grounds to change its assessment.
- In June 2017, a different social worker met with Mrs K and there was further discussion about whether it could provide services. But there was no further assessment of need, given Mrs K did not want the Council to arrange a care package for her.
- In its replies to Mrs K’s complaint the Council also noted it assessed her care in 2013. It offered to provide services then but cancelled those because Mrs K did not want to contribute to the cost. It says little changed in Mrs K’s financial circumstances between 2013 and 2017. So, it considers Mrs K would have realised it would make a charge on this occasion also.
- I cannot say exactly what passed between the social worker and Mrs K when the former met with Mrs K in December 2016 as part of her needs assessment. I consider it likely on balance there was some reference to the Council charging policy. The social worker reported knowing Mrs K received benefit income so there must have been some discussion around her income. This is likely to have been in the context of discussion around charging. But I consider this inadequate to show that Mrs K knew for sure the Council could or would charge her for care.
- It also falls well short of the expectation set out in Government guidance. Because this sets out that usually, the Council should tell those receiving care what they will have to pay towards it, before care begins. Or at least provide an indication of that amount. There is no evidence Mrs K received such information in this case.
- I can find no mitigation for the Council. It cannot show that it gave Mrs K financial assessment forms when it visited her in December. It did not tell her of its indicative or personal budget after that. If it had sent Mrs K a copy of her care and support plan this would have told her wrongly that she had nothing to pay. It is acceptable for the Council to use a separate team to assess a client’s finances. But it was seven weeks after the assessment began before they received Mrs K’s details. There is no sign that team then contacted Mrs K for a further two to three weeks, by which time her care had begun. This was too long.
- I do not consider the Council can assume Mrs K would know to pay a charge, let alone the amount, based on any experience from 2013. And she did not delay in returning the financial assessment form sent to her in early February 2017.
- Taking account of all the above I must find fault. The Council failed to do enough to ensure Mrs K could know what she would have to pay towards her care before it began.
- The facts show that once Mrs K knew of the assessed charge she immediately made plans to limit her costs. I consider one injustice arising from the Council’s fault is that Mrs K did not have the opportunity to make this choice sooner. She also had the distress of receiving an unexpected demand for money.
- I note that Mrs K finds the invoices inconsistent, but I cannot uphold that part of the complaint. The invoices are consistent with what the Council assessed Mrs K owing. I also could see no fault in the assessment itself. I make no further criticism of the Council therefore about this part of the complaint. I also note and welcome that it tried to explain the charging policy and procedure to Mrs K in a face-to-face meeting in April and re-engage with her in June.
The complaint about the Care Provider
- After the care package cancelled Mrs K and her son continued their complaint with the Council. When writing for his mother, Mrs K’s son raised other issues around the care provided to her. He said:
- Carers did not always visit for the contracted number of hours. He said they used a mobile phone device to record their time in the property; Mrs K still had the log-in equipment in her home if the Council wanted to check it.
- That one carer had stolen money and several low value items from Mrs K.
- That carers had made basic mistakes with care such as putting carrots in a fruit salad or not washing out cups properly. He could not give dates/times for these incidents but said the Council could talk to Mrs K about them.
- I do not consider I can add to the Council’s investigation here. I accept it could not reach conclusions on these matters for the reasons it explained. I therefore discontinued my investigation into this part of the complaint.
- The Council has accepted my findings set out above. To remedy the injustice caused to Mrs K it has agreed that within 20 working days of this decision it will:
- Apologise to Mrs K, accepting the findings of this investigation;
- Confirm it has written off those charges for care invoiced for February and March 2017.
- That financial assessments happen around the same time as assessments of need;
- That it shares with clients information on indicative and personal budgets;
- That financial assessments complete in good time or else any delay is not the Council’s fault;
- That all relevant staff have the necessary training and awareness of these polices.
The review will therefore focus on how well the Council achieves these objectives currently and how it can secure any improvements needed.
- I have upheld this complaint finding fault by the Council causing an injustice to the complainant. The Council has accepted this finding and agreed action it will take to remedy that injustice. Consequently, I can complete my investigation satisfied with its actions.
Investigator's decision on behalf of the Ombudsman