Summary: Mrs X complained on behalf of her adult son, Mr Y, about changes the Council made to the contract arrangements and charges for his care. The Council has not changed the care provided for Mr Y but it reviewed the way the care was funded. The Council was not at fault in deciding to review the funding but its communication with Mrs X about this was poor. The Council also delayed providing Mrs X with key documents. The Council has already apologised to Mrs X for any distress caused by unclear communication and delay, written off some of Mr Y’s care charges and reviewed its procedures. This is an appropriate remedy.

The complaint

1. Mrs X complained on behalf of her adult son, Mr Y, about changes the Council made to the contract arrangements and charges for his care. She says the changes were made unilaterally and were not in his best interests at that time. The Council failed to involve her when implementing the changes and the matter has caused her and her son distress. She also said the Council failed to provide her with key documents. She wants the Council to restore the previous care and charging arrangements.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

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How I considered this complaint

4. I read Mrs X’s complaint and considered information she provided during telephone conversations. I also considered documents she sent us.
5. I considered information sent by the Council in response to our enquiries.
6. Mrs X and the Council were given the opportunity to comment on a draft of the decision. I considered the comments I received in reaching the final decision.

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What I found

Legal and administrative background

Assessment and provision of care and support

7. The Care Act 2014 provides the legal framework for the assessment and provision of care and support for adults assessed by councils as having eligible needs. The Act is supported by several statutory regulations and the Care and Support Statutory Guidance (the Guidance).
8. Councils have a duty to assess if a person has care and support needs, and if so, what they are.
9. If they are assessed as having eligible needs, the Council can charge the person for the cost of their care and support.

Charging for care

10. The Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Guidance set out how councils must calculate the amount an individual should contribute to their care. Councils decide whether and how much to charge a person by completing a financial assessment.
11. Where a person lacks capacity, they may still be assessed as able to contribute towards the cost of their care.

Deprivation of Liberty Safeguards (DoLS) authorisation

12. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. DoLS requests from care homes are assessed and authorised by councils responsible for a person’s care. DoLS requests for a person living in the community are assessed and authorised by the Court of Protection.

What happened

13. Mr Y is an adult who has a severe learning disability and other health conditions. He requires 24-hour care. For many years, Mr Y has divided his week between his parents’ house and a care home. His usual routine is to live in the care home Monday to Friday, from where he attends a day centre each day. At the weekend, he returns home to live with his parents, Mr and Mrs X.
14. Mrs X says the Council agreed Mr Y’s care arrangements in 2002 and this arrangement has worked well for many years. Since 2002, the Council charged Mr Y for respite care in the care home during the week but did not charge for care at weekends whilst Mr Y was at home with his parents. Mr Y receives state benefits based on this shared-care arrangement. Mrs X manages Mr Y’s finances and pays Mr Y’s care contribution from his benefits.
15. In April 2018, the Council met with Mr and Mrs X for Mr Y’s annual review. The Council discussed Mr Y’s care arrangements and said it needed to make changes to them to reflect the care Mr Y received. It said the care commissioned for Mr Y was long-term residential care and not respite care, and his care plan and charging arrangements should reflect this. Mrs X told the Council she did not accept the changes and said there was no consideration of whether this was in Mr Y’s best interests. She also told the Council Mr Y had not been invoiced for his care since August 2017.
16. In October 2018, the Council reviewed Mr Y’s care and support plan. The plan listed Mr Y’s care as “residential respite” 5 days per week.
17. In March 2019, the Council reviewed Mr Y’s care and support plan again. It changed the recording of Mr Y’s current care arrangement to “residential long term”.
18. In May 2019, the Council told Mrs X that it had changed Mr Y’s care arrangement to a long-term residential care contract. It said this change of contract had been backdated to September 2018. Mrs X wrote to the Council. She said the Council had not told her of the change, despite the Council now saying it had started in September 2018 and despite her having met with Council officers in October 2018, November 2018 and March 2019. She said it should have involved her in this decision and she did not recognise the contract.
19. The Council wrote to Mrs X. It said following discussions with her during 2018,
    Mr Y had been put on a residential contract since September 2018. It said it would send her Mr Y’s invoices that reflected this change. It said as Mr Y was now considered to receive full-time residential care and likely to lack capacity to make decisions about the level of restrictions needed to maintain his safety in the home, it would be applying for a DoLS authorisation through the Council’s DoLS team.
20. Mrs X formally complained to the Council. She said the letter had caused her considerable distress. She had consistently opposed the implementation of a long-term residential contract for Mr Y, as it was not in his best interests due to the poor level of care he as receiving at the care home at that time. She said the Council had imposed this contract on Mr Y without her knowledge, and put it in place retrospectively, for its own convenience. She said any change to Mr Y’s care arrangements should have been discussed and made at a best interests’ meeting. She said she would be seeking legal advice. She asked the Council to stop the DoLS authorisation process as she did not accept or agree that Mr Y was now a long-term resident in the care home.
21. The Council responded to her complaint. It said although it acknowledged the historical arrangement agreed in 2002, to say Mr Y lived with Mr and Mrs X and had respite care 5 days a week was not a correct interpretation of the care arrangements. It said the care the Council commissioned for Mr Y was long-term residential provision and his care and support plan should reflect this. It explained the actions it had taken to address the concerns raised about the quality of the care provided, with regular quality monitoring and a robust action plan in place. It said as Mr Y was in a long-term residential placement and was not free to leave, it was appropriate that a Council approved DoLS authorisation was put in place. It apologised for any distress caused by the tone of the letter. It also apologised for the lack of clarity in its communications with Mrs X, for the difficulty resolving the matter, and for any delay during the process.
22. Mrs X was unhappy with the complaint response. She said the Council had honoured Mr Y’s care arrangements as respite care for 17 years. It had imposed the change without her knowledge or consent. She said the Council considered the matter an ‘amendment to the administration’, but the change had a big impact on all their lives and was not in Mr Y’s best interests. She also said that, despite repeated requests, she had still not received any invoices for Mr Y’s care since August 2017.
23. The Council met with Mrs X in September 2019 to discuss her complaint. The Council said it considered Mr Y’s current arrangement to be permanent residency in the care home, as his room remained vacant at weekends when he returned home. Mrs X told the Council she did not currently recognise the long-term residential contract and it needed further consideration. She said any changes should be made by mutual agreement and from a projected future date. She asked the Council to send her a copy of the DoLS authorisation and other documents.
24. In October 2019, the Council wrote to Mrs X again. It said Mr Y had been assessed as needing long-term residential care and this was the care the Council commissioned for him. It said this would now be reflected in his care and support plan and in future invoices, and the new arrangement would start from
    1 November 2019. It apologised if the change in care arrangements had come as a shock to her and acknowledged the Council could have been clearer with her in its communications. It accepted it had not sent any invoices for Mr Y’s care since August 2017. It said, as a gesture of goodwill, it would write off charges between August 2017 and May 2019. It said it would charge Mr Y costs for respite care from May to October 2019 under the previous arrangement, but it would start charging Mr Y for long-term residential care costs from 1 November 2019.
25. Mrs X continued to correspond with the Council. She remained unhappy and disagreed with the Council’s view, but the Council would not change its position.

My investigation

26. In its response to our enquiries, the Council said whilst acknowledging the historic agreement, Mr Y’s care arrangement could not be considered respite care as the care home is his long-term home. When Mr Y returned home at weekends, his room at the care home did not get used by another person. It said the changes to the recording of Mr Y’s care arrangement and to his care charges were necessary to accurately reflect the commissioned care and support he received. It said the changes in the recording and charging arrangements did not affect his delivered care and support – he continued to live at the care home Monday to Fridays and would return home to Mr and Mrs X most weekends.
27. It acknowledged there had been a delay in invoicing and said because of this error it had written off charges for Mr Y’s care between August 2017 and May 2019 as a gesture of good will.
28. It said the DoLS authorisation was appropriate as Mr Y lived in a residential placement, was not free to leave and lacked capacity to consent to the restrictions placed on his liberty. It apologised it had not sent Mrs X a copy of the DoLS assessment. It said it was not Council practice to send representatives a copy, but it had now sent Mrs X a copy and reviewed its procedures.
29. It acknowledged the issues raised could have been addressed sooner, and the lack of clarity whilst implementing the changes. However, it said it had worked with Mr and Mrs X to understand their concerns, wrote to them to confirm the changes and provided sufficient notice of the start date for the new arrangements.

Analysis

30. The Care Act 2014 allows councils to charge service users for their care and support. The Council reviewed Mr Y’s care arrangements in 2018 and decided the recording of Mr Y’s care and the way the Council charged for his care did not accurately reflect the care commissioned. Mr Y spends most of the week at the care home and his room is not occupied by another person at the weekends. The Council commissioned full-time care at the care home for Mr Y. The Council is not at fault for reviewing Mr Y’s care recording and charging arrangements to ensure these arrangements accurately reflected the care commissioned to meet his needs.
31. The Council met with Mr and Mrs X in 2018 to discuss the changes but agreed not to implement them at that time. It then told Mrs X in May 2019 that the changes to the care contract and charging had been implemented and were backdated to September 2018. This poor communication was fault which caused Mrs X distress. The Council has acknowledged there was a lack of clarity and has apologised to Mrs X for this and for any distress caused. This is an appropriate remedy.
32. The Council responded appropriately to Mrs X’s complaint. It reviewed its decision and met with Mr and Mrs X to discuss their concerns. It explained its rationale for the changes and gave Mrs X notice of a new start date for the changes to the way it recorded and charged for Mr Y’s care.
33. The Council accepted it had not invoiced Mr Y for his care since August 2017. This was fault. To remedy this, the Council has written off Mr Y’s charges for his care between August 2017 to May 2019. This is an appropriate remedy and more than I would expect. It said between May and October 2019, it would maintain the charges at the respite care rate until the start of the new arrangement on
    1 November 2019. These are appropriate actions to remedy any injustice caused by the delay in sending invoices.
34. The Council said it did not send Mrs X a copy of the DoLS authorisation as it was not its normal procedure to send a copy to a person’s representative. It has now sent Mrs X a copy and reviewed its procedures. This delay did not cause Mrs X any significant injustice and the Council has acted appropriately to review its processes.

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Final decision

35. I have completed my investigation. The Council was at fault but has already acted to remedy any injustice caused.

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Investigator's decision on behalf of the Ombudsman