Summary: Ms X complains the Council did not explain Mr Y would have to pay towards his care and did not calculate his charge properly. Mr Y cancelled his care when he found out as he could not afford to pay for it. The Ombudsman finds the Council was at fault because it did not provide adequate information or respond effectively to Mr Y’s concerns. It caused Mr Y significant, undue distress. It will apologise, pay Mr Y £200, and provide a written explanation of the financial assessments and Mr Y’s options. It will also tell Mr Y where he can get suitable financial advice, discuss his disability related expenditure and backdate any allowance where appropriate.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains on behalf of Mr Y, that the Council:
• Did not explain the charging clearly to him in advance so he understood what he would have to pay.
• Did not consider the impact of his medication on his ability to understand and deal with the information given to him and did not provide all necessary information in writing.
• Did not respond to a request for a repayment plan.
• Completed a distressing and unprofessional visit to Mr Y on 25 February 2019.
• Delayed providing a copy of Mr Y’s needs assessment
• Did not explain he would have two weeks, not six weeks, free enablement, until the day the two weeks ended.
• Did not complete a financial assessment before charging him.
• Did not allow for expenditure evidenced by receipts.
2. Ms X says this caused great distress to Mr Y and thoughts of not wanting to live. He cancelled his package of care because he could not afford it and has a debt he can’t pay. Mr Y would like the Council to:
• waive charges from 20 December until the financial assessment in March 2019.
• Agree a repayment plan for the remainder of the debt.
• Take account of the receipts provided in the financial assessment.
• Apologise.
• Review its processes.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended). Mr Y has given his consent for Ms X to bring this complaint on his behalf.

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How I considered this complaint

6. I considered information from the Complainant and from the Council.
7. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

Intermediate care

8. Intermediate care and reablement (or enablement) support services are for people who have left hospital or when they are at risk of going to hospital. They are time limited and aim to help a person preserve, or regain, the ability to live independently.
9. The Care and Support statutory guidance (CSSG) to the Care Act 2014 (the Care Act) says the local authority must not charge for reablement support. It must provide this free of charge for up to six weeks.

Information and advice

10. The Care Act places a duty on councils to provide information and advice to people in its area. This includes information and advice relating to care and support for adults. The CSSG says councils should “actively encourage” people towards “the types of information and/or advice that may be particularly relevant to them”. It says councils must have regard to the importance of identifying people “who may benefit from financial information and advice on matters concerning care and support”. This is so it can “help them understand the financial costs of their care and support and access independent financial information and advice including from regulated financial advisers”.

Financial assessment

11. Councils have discretion to charge for non-residential services. Where a council decides to charge it must do so in line with the Care and Support (Charging and Assessment of Resources) Regulations and have regard to the Care and Support Statutory Guidance (CSSG). 
12. Where a council has decided to charge, it must carry out a financial assessment of what a person can afford to pay. The council must not charge more than the cost it incurs in meeting the assessed needs of the individual. It must also regularly reassess a person’s ability to meet the cost of their care to take account of any changes in their resources. 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. Disability related expenditure (DRE) can include the cost of any privately arranged care services and only costs incurred due to disability that someone without a disability would not incur.
13. The Care and Support Statutory Guidance (CASSG) says that local authorities must ensure a person’s income is not reduced below a specific amount after charging. This is the “minimum income guarantee” (MIG) and the amount is set out in the Care and Support (Charging and Assessment of Resources) Regulations. The purpose of the MIG is “to promote independence and social inclusion and ensure that they have sufficient funds to meet basic needs such as purchasing food, utility costs or insurance”.
14. Local authorities should clearly discuss with the person or their representative at the outset that care and support is a chargeable service and that where the person has been assessed as being able to afford to do so, they will be required to contribute to the cost of that care.

What happened

15. Mr Y has health conditions and disabilities which cause him difficulties with mobility and daily living.
16. In December 2018, the Council assessed Mr Y’s needs following a long stay in hospital, and he was discharged home with a five day home care service. This service was jointly funded by the health service and adult social care and was provided free of charge to support timely discharge from hospital. Mr Y became disabled during his hospital stay so this was the first time he had been at home with his disabilities.
17. At the end of the five days, Mr Y received a reablement service from Essex Cares Limited (ECL). ECL is a local authority trading company wholly owned by the Council. At the beginning of January 2019, ECL completed a review of the support and advised the Council that Mr Y only needed two weeks of enablement and asked the Council to assess his needs. Ms X says Mr Y was not advised of the outcome of this review and only found out in April that the enablement had ended after two weeks. He understood he would receive six weeks free enablement.
18. The Council completed an assessment over the next few days. Its records note that it explained its charging policy to Mr Y and advised he would need a financial assessment to decide how much he should pay towards his care costs. It noted that Mr Y said he had to heat his flat a lot more because of his reduced mobility and referred him for a financial assessment. Ms X says although the Council says it telephoned and read out a cost statement, it did not provide the information in writing and she does not believe it called.
19. The Council identified a need for 8 hours 45 minutes support a week and began looking for a care provider to start on 19 January. Mr Y was admitted to hospital again before the Council could complete a financial assessment. When Mr Y returned home, the Council arranged support from another care provider.
20. On 25 February, a social worker visited Mr Y and told him his care package would end the following morning. The social worker also said the Council would take money from his bank for the care delivered so far. Two days later, Ms X complained to the Council. She says these actions caused Mr Y “great emotional distress” and he did not want to live anymore. I have not included all the detail here but I was concerned at the inappropriate approach. The Council apologised and immediately reinstated Mr Y’s care and assigned a new social worker. It said it had taken action to address “particular behaviours” which were not acceptable. The new social worker assessed Mr Y’s needs with Ms X present and provided him with a copy of the assessment. The social worker also arranged for a financial assessment to take place on 15 March.
21. In her complaint to the Council, Ms X highlighted that Mr Y took over 30 tablets of medication each day including liquid opiate. She said this caused him to be sleepy and he struggled with concentration. He was also in considerable pain at times. Ms X says the Council did not consider the impact of the medication on his ability to concentrate and absorb the information it gave him. Mr Y’s GP has confirmed this impact.
22. A few days later, the Council sent Mr Y a letter advising his care costs were £1,687 weekly. Ms X says this caused further emotional distress and she complained again. The Council told her not to worry about the letter.
23. Ms X was present on 15 March for the financial assessment. This found Mr Y would need to pay £107.99 weekly backdated to January, when the free enablement ended. Mr Y and Ms X submitted some receipts to evidence costs of utilities, gardening and cleaning so that the Council could allow for this expenditure. The Council had allowed £15.66 weekly against the cost of a cleaner. This increased to £16.42 in April and therefore the contribution reduced to £107.23.
24. Mr Y had some debts he had committed to before he became ill and some which had accumulated before he had known about the benefits he could claim. He was paying for a recliner chair as he needed to elevate his leg and this was on credit as were some essential white goods. Ms X says the financial assessment did not allow for these. Ms X says it also did not take into account the costs for which they had provided evidence of expenditure. From 8 April, Mr Y’s assessed contribution increased to £114.71 following the annual benefits uplift.
25. Ms X complained to the Council again querying the invoice amounts; she also asked for a final statement of the debt owed by Mr Y. She says the Council did not respond. Mr Y was so distressed by this stage, he cancelled his care.
26. When Ms X told the Council she would bring her complaint to the Ombudsman, it replied, clearly setting out the outstanding amount and how it had calculated this. It did not address Ms X’s questions about the expenditure Mr Y had asked to be considered. It also did not address the clear misunderstandings that Ms X had about the financial assessment process. It said “our records demonstrate that financial charging was discussed prior to the charges starting date” and that this had since been discussed by three other officers. One of these three was the social worker who was replaced following unacceptable behaviours. Another had simply passed Ms X’s concerns on to the third, and the third had left the Council without having properly responded to Ms X’s complaint. I saw no written record of the information these individuals were said to have provided.
27. In July, Ms X brought her complaint to the Ombudsman and the Council advised it would not send further demand letters until the complaint was resolved.
28. The Council did not send Mr Y’s needs assessment as requested so I was unable to see whether this demonstrated any needs which might cause extra expenditure.

Was there fault which caused injustice?

29. Mr Y was mistaken in his understanding that the free reablement service would last for six weeks. The Council cannot advise in advance how long reablement will last because it depends how effective it is and is subject to assessment. The Council was not at fault in providing less than six weeks and it took appropriate advice from the reablement service about this following its assessment. However, the Council significantly delayed sharing this assessment with Mr Y and was at fault here. In the absence of clear written information about reablement and the wider financial implications of care and support at this stage, it is unsurprising Mr Y was mistaken.
30. The Council’s records are clear that Mr Y was made aware of the need for a financial assessment during the needs assessment, and by mid January. Even if the social worker did not call to read the cost statement, I am satisfied, on the balance of probabilities, that the Council told Mr Y he may have to pay a contribution.
31. The Council dealt appropriately with Ms X’s complaint about a later social worker’s distressing visit. This caused Mr Y significant, undue distress. The Council apologised and took immediate action, both to reinstate Mr Y’s care and to prevent a recurrence. This action would have been enough to remedy the injustice caused here if the visit had been the only issue. However, the injustice caused to Mr Y was compounded because the Council still did not effectively address the financial issues which gave rise to the visit.
32. Mr Y was newly disabled and still coming to terms with his need for care and support. He was also taking medication which affected his ability to absorb the information. I saw no record of written communication from the Council which explained the issues clearly and comprehensively. For example, the Council did not explain at all why it did not allow for extra heating or that it could not allow for debt repayments. I saw no record the Council discussed other possible disability related expenditure with Mr Y to ensure he had claimed all he was entitled to. The Council was not at fault in the way it calculated Mr Y’s contribution, but in failing to properly consider Mr Y’s concerns about this. It was also at fault in the insensitive and unhelpful way it engaged with Mr Y and Ms X and did not adequately deal with their queries. Despite having complained to the Council several times about the same issues, Mr Y and Ms X are still not clear how the charges work.
33. The Council should have provided effective information tailored to Mr Y’s specific circumstances and information about where Mr Y could get financial advice. It also could have discussed a repayment plan when requested. Had it done so, this complaint could have ended long ago and Mr Y would, perhaps have been less distressed

Agreed action

34. To remedy the injustice caused, I recommended the Council:
• Apologise to Mr Y and Ms X, in writing, for the faults identified above.
• Pay Mr Y £200 or waive this from any outstanding contributions.
• Explain sensitively to Mr Y about the financial assessment and what his options are if he cannot afford the assessed contribution. Also, provide a written record of this.
• Provide Mr Y with written information about where he can get suitable financial advice.
• Offer to meet with Mr Y to discuss possible disability related expenditure and provide written notes of the meeting. This should consider whether any of his current outgoings should be included.
• Backdate any disability related expenditure not previously considered appropriately and revise the financial assessment(s).
• Send evidence of these actions within one month of the final decision. Suitable evidence would include:
1. A copy of the apology.
2. Confirmation of the payment/waiver.
3. Written record of the explanation to Mr Y.
4. Copy of the information about financial advice.
5. Notes of the meeting.
6. Copy of any revised financial assessment.

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Final decision

35. I have completed my investigation and uphold Ms X’s complaints that the Council:
• Did not explain the charging clearly to him in advance so he understood what he would have to pay.
• Did not consider the impact of his medication on his ability to understand and deal with the information given to him and did not provide all necessary information in writing.
• Did not respond to a request for a repayment plan.
• Completed a distressing and unprofessional visit to Mr Y on 25 February 2019.
• Delayed providing a copy of Mr Y’s needs assessment
36. I have not upheld Mr Y’s complaints that the Council:
• Did not explain he would have two weeks, not six weeks, free enablement, until the day the two weeks ended.
• Did not complete a financial assessment before charging him.
• Did not allow for expenditure evidenced by receipts.

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Investigator's decision on behalf of the Ombudsman