Summary: Mrs X complained the Council repeatedly incorrectly billed her for care. She says the Council’s communication about direct payments was poor and its approach has caused her distress. The Council is at fault for being unable to fully evidence communication with Mrs X about her care package. I have not found evidence of other fault.

The complaint

1. Mrs X complains that:

• The Council has incorrectly billed her a large amount and caused her distress by threatening legal action to recover the alleged debt.
• The Council has failed to support her with her direct payments.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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. 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)
5. 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

6. I spoke with the complainant.
7. I made enquiries with the Council and read the relevant law and guidance.
8. Both the Council and the complainant had the opportunity to comment on our draft decision. I considered any observations made before issuing this final decision.

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What I found

Relevant law

Care plans

9. As with copies of assessments, councils are under a duty to give a copy of any care plan to the individual who is the subject of the care plan. The courts have said that the failure to provide a care plan is not a minor administrative issue.

Assessment of contribution towards care

10. When a council provides care and support, it has discretion to charge for this provision. If it decides to do so, it must complete financial assessments to determine how much a service user can afford to contribute. It will assess a person’s income and living costs. Once the local authority has worked out income and living costs, it will arrive at an amount of money ‘left over’, from which a person can be asked to pay charges for care and support.
11. The Care Act 2014 says local authorities have a certain amount of discretion about what they charge. But they should ensure they are clear and transparent.

Personal Budgets

12. The Care Act explains that personal budgets help people exercise greater choice and control over how their care and support needs are met. Statutory guidance says it is ‘vital’ that people are clear how their budget is calculated and that the process is ‘transparent’ and ‘robust’. A 2015 Ombudsman report confirmed the hourly rates on which personal budgets and direct payments are assessed must not be arbitrary and the calculations must be shared with adults in need or carers. Individuals must have this information at a stage which enables them to effectively engage in care and support planning.

Direct payments

13. Direct payments involve a council transferring money to an individual (or someone on the individual’s behalf). As some financial arrangements can be confusing, Department of Health Guidance on direct payments (2009) (the DP regulations) stresses the importance of councils providing support, particularly from user-led organisations/local centres for independent living.

Monitoring direct payments

14. The recipient of direct payments must ensure that any payments made are spent on services to meet the assessed need. Statutory guidance says a council’s monitoring and administrative processes must not restrict choice or stifle innovation. The monitoring system should incorporate the minimal elements to allow a council to fulfil its statutory responsibilities but not put a disproportionate reporting burden on the individual.

Reviews

15. The DP regulations say reviews should take place at least once within the first six months of making the first payment and thereafter every 12 months. Statutory guidance explains that reviews are ‘intended to be light-touch to ensure that the person is comfortable with using the direct payment’. The outcome of the review should be written down and a copy given to all parties. Where there are issues that require resolving, the resolution should be agreed with all parties involved.

Background

16. Mrs X suffers from a debilitating condition. She sought help from the Council in 2015. I am not investigating any actions the Council took around that time but in order to understand Mrs X’s complaint it has been necessary to look at the wider history.
17. In 2016 the Council provided Mrs X with four and a half hours support per week. Mrs X asked the Council to arrange direct payments for her. She signed a contract in September 2016. It set out that she was entitled to £46.89 or 4.5 hours care.
18. The document also set out if Mrs X decided to employ a personal assistant herself, Mrs X must meet the legal requirements of being an employer, which included taking out Employers and Public Liability insurance.
19. At the time Mrs X was not in a comfortable financial position. The Council assessed that she could contribute £6.85 per week towards her care package.
20. The Council emailed Mrs X at the beginning of September 2016. It set out that when Mrs X’s benefits increased, she would pay the full cost of her care up to a maximum of £58 per week. It was explained that this would be backdated to August 2016.
21. Mrs X received this email and responded, saying she would be happy to receive invoices for payment.
22. The Council provided Mrs X with a benefits advisor who assisted her in applying for increased benefits but her income from benefits was not sorted out until January 2018. In the interim, Mrs X’s benefits income remained unchanged and so her contribution remained unchanged.
23. The records show Mrs X was happy with the care she was receiving using the direct payments. The Council reviewed her care package in January 2017. Mrs X said she required extra care. After the review, her weekly care package increased, in May 2017, to six and a half hours. Mrs X’s contribution to her care remained the same because, so far as the Council was aware, her income remained unchanged.
24. I have seen a copy of the review documentation. However, the Council has been unable to confirm that a copy was sent to Mrs X.
25. In January 2018, the Council wrote to Mrs X. It told her it had recalculated her contribution towards her care package. The Council says Mrs X had received a cheque from the department of work and pensions for just under £10,000 as a backdate of payments that should have been made to her. Once this income had been included, the Council calculated that:
26. Mrs X’s contribution should have been:

• £34.60 per week from 1 September 2016
• £52.98 per week from 16 October 2016
• £53.98 per week from 9 April 2017

27. The letter said it attached a copy of the contribution calculations. She was invoiced just under £3360 in back dated charges.
28. Mrs X complained about the backdated charges. The Council responded saying its calculations were correct. It set out how it reached its calculations in its response and provided a number for Mrs X to call if she wanted to discuss further.
29. On 10 April 2018 Mrs X asked for an itemized breakdown of all care payments and an explanation of the charges. Mrs X also later said that she had paid approximately £770 to cover backpay. The Council asked for proof of payment.
30. The Council said Mrs X would not be charged interest on the invoices that remained outstanding. It said that it could ask a welfare benefits officer to visit her and asked if she needed an advocate.
31. In June 2018, the Council conducted an annual review of Mrs X’s direct payments. It did not report any concerns with the direct payments system or charges. Again, the Council has been unable to confirm that a copy was sent to Mrs X.
32. In September 2018, Mrs X asked for an Individual Disability Related Assessment as she considered her expenditure was more than the standard amount that was disregarded in financial assessments. As a result, the Council reduced her contribution to £44.98 per week. It informed her of this decision in December 2018, backdating the reduction. It says that as Mrs X had not provided receipts it built in a review in three months’ time.
33. Mrs X’s mother was ill and the Council was unable to visit in three months. When it visited in June her contribution was increased again, this time to £59.14.
34. In June 2019, Mrs X wrote to the Council and said she had had no more than two and a half hours care per week for eight weeks.
35. The Council responded that it was not charging her for eight weeks back charges but for 76 weeks, from 7 August 2016 to 21 January 2018.
36. When more provision was requested in October 2019, the Council agreed and for a period of 12 weeks, increased the care package.

Information sharing and transparency

37. In all the documents I have seen, it is recorded that the support plans and personal budgets can be shared with Mrs X. However, the Council says it is unable to evidence this happened. It says the officer involved cannot remember so far back as some of the documentation is from 2016. The documentation, in almost all cases, sets out the hourly rate and the number of hours. It details the cost of the package of care. When Mrs X’s contribution was assessed as having changed, the Council has evidenced that it produced letters setting out the changes to her contribution.
38. But the communication from Mrs X expresses confusion about the large backdated bill. She said that although she requested information such as hourly rates, this was not provided. In her complaint correspondence she says she only had 20 hours care over the period she was billed but the personal budget plans and timesheets I have seen indicate she had much more than that. She expresses concern that charges have not been explained to her.

A separate invoice

39. In August 2019 the Council issued Mrs X a new bill for care services from 8 July to 4 August 2019. In October, when the bill had not been paid, it said that if the bill was not settled, it would pass the debt to debt collectors.
40. Mrs X expressed exasperation. She said she could not understand why the Council was sending her aggressive bills as she viewed that she had settled her accounts every month without fail. She said her bills were always paid early.
41. She also complained that she should have to pay for her care package even when she was on holiday.
42. The Council said it had provided Mrs X with a breakdown of charges but Mrs X did not appear to have received this as she asked for it again.
43. Mrs X continued to complain. She disagreed with the Council’s version of events. In October 2019, the Council again asked for the large backdated invoice to be paid.
44. The officer who wrote to Mrs X said that she had checked the timesheets with the care agency used to ensure that any missed calls had not been charged for. Mrs X was given the number of the department of work and pensions and advised to seek support through a social worker.
45. On 15 October 2019 Mrs X complained that the Council:

• had not given her support to check bills, fees and charges
• had sent her emails demanding payments and been threatened with a credit reference agency and legal team
• was charged for a voluntary shopping provision or for care that did not go ahead
• that her care costs had recently increased, and
• that no contribution had been made to administrate the costs of managing her direct payments account.

46. Mrs X came to the Ombudsman with her complaint.
47. The Council says:

• It has offered Mrs X support at various points over the years. It has provided evidence that it has done this, for example, recommending she seek help from a local support team.
• It says that the shopping provision Mrs X says she should not have been charged for was part of the provision that was outlined in her original support plan. I have checked and shopping was part of the provision that was outlined in the plan.

48. Since that time, Mrs X has raised other complaints with the Council and has ceased her direct payments arrangement. These matters fall outside the remit of my investigation.
49. The Council says it has offered Mrs X the opportunity to pay back the debt in instalments. There is some dispute about what was and was not paid but I am not addressing that here as the fundamental issue is about whether the Council has over-charged Mrs X, not the arrangements she made with the Council for addressing her alleged debt.
50. The Council says Mrs X had access to support to help manage her direct payments via a local support team which provides payroll support to help manage her direct payments. It says the team reported that Mrs X managed her finances well and raised no issues with them.

Analysis

51. The communication from Mrs X suggests she has found the Council’s backdating of her care charges very confusing. She insists she has been paying on a regular basis in accordance with the agreement she reached with the Council in September 2016 and that the payments she has made have not been taken into account. She says the Council’s insistence that she owes a much larger amount is wrong and has caused her a great deal of distress. She says she has now decided not to use the direct payments system because of the lack of support she received around her complaints about the charging issues.
52. The records I have seen show that Mrs X made regular payments towards her care from 2016 onwards. The email the Council sent Mrs X in September 2016 shows she was forewarned when she entered into the initial agreement with the Council, that upon her benefits increasing, her contribution would also increase She was told payments would be backdated.
53. Mrs X says she has calculated, using what she currently pays as a good guide, how much she should have been charged for the period in question. She feels she has paid it.
54. However, it is not the charges that have changed over time, but Mrs X’s contribution that has been reassessed. When Mrs X’s benefits were paid, the Council recalculated her contribution including the benefits she had been paid since September 2016. Because her income had increased, her contribution to what she had to pay also increased.
55. Mrs X also complains that she did not receive the hours of care that the Council charged her for. I have seen copies of support plans and personal budgets which cover the period between October 2016 and October 2019. I have also seen copies of timesheets setting out the number of hours support Mrs X received over the period. Mrs X signed the timesheets agreeing these hours were provided. They show the gradual increase in care for Mrs X. It was not recorded that Mrs X was unhappy with the provision. It appears to have been provided on a regular basis during the period.
56. But the Care Act emphasises that councils should ensure it is transparent with those that use its services. Those who have personal plans and budgets should be able to see those plans and budgets. It is important they should be able to comment on the information within. They should feel they are very much a part of the process. I have not been given evidence that Mrs X was provided with copies of the plans and budgets that would have set out the changes in her care plans or any other changes. The Council says that this is because the officer involved cannot recall back almost four years. However, Council’s should keep comprehensive records so that officers do not have to rely on their recollection. Further, I would have expected to see evidence that at least the more recent assessments or any reviews of her package were sent to Mrs X. This is fault.
57. A bill of over £3000 must have come as a shock. But the Council recalculated as soon as it became aware of Mrs X’s benefit back payment and explained how the bill was calculated to Mrs X.
58. Mrs X asked for care support to meet her needs. It is therefore clear that she needed this support and would have needed to pay a contribution towards it. The care and support plans I have seen evidence that Mrs X engaged with council officers about her care, she made requests which were responded to. When the Council first assessed Mrs X’s contribution to her charges, that was what it considered she could afford at that time. It is reasonable to expect that this payment would increase in proportion to her income. The Council has a duty to the public purse and to recover charges that were due and owing by Mrs X.
59. Further, although I consider the Council is at fault for not having a clear and evidenced trail of communication with Mrs X about the increased charges and her understanding of the changes, when she asked for help at the complaint stage, she was offered support. She was offered the help of an advocate. She was offered a visit from a welfare officer. She was asked to contact her social worker.
60. But Mrs X had lost faith in the system that had supported her. I have made a recommendation that might help remedy this and provide resolution. It is important that Mrs X should feel confident using services she is assessed as needing.

Recommended/ agreed action

61. Within a month of this decision, the Council should:

• Apologise to Mrs X for not evidencing that it kept her informed of the changes to her plan and personal budget by providing her with copies of amended plans and personal budgets.
• Pay Mrs X the sum of £200 to acknowledge the distress caused by the provision of a sudden large bill as it is unable to evidence she had been fully kept informed of the changes to her care support package. (In line with our guidance on remedies, this sum can be offset against Mrs X’s arrears.)

62. Within two months of this decision, the Council should:

• Ask Mrs X if she would like some help in understanding the financial position. Mrs X should then be given another opportunity to pay her bill by instalments that are affordable to her, following assessment of her current circumstances.

63. The Council should provide evidence to the Ombudsman that the above recommendations have been completed.

What I have not investigated

64. I have not made any findings about whether Mrs X was provided with enough information about how the responsibilities that are involved in being an employer when using direct payments. The Council informs me that Mrs X was provided with the relevant information. I have not enquired beyond that because direct payments were instigated on this account more than three years ago and the evidence indicates that Mrs X did not take issue with the system until after she was presented with a large bill in January 2018. I do not consider I have good reason to investigate so far back in time to ascertain how thorough the Council’s sharing of information was at the outset of the direct payments.

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Final decision

65. I have found the Council at fault for failing to evidence its communication. It is not at fault for asking Mrs X to pay a debt that appears to be owed. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman