Summary: Mrs B complained the Council had not dealt properly with her father’s financial assessment and based demands for payment on levels of care Mr C did not received. Mrs B says this caused Mr C distress and financial difficulty. The Council was at fault for not having a charging policy document. This caused Mrs B and Mr C uncertainty. The Council has agreed to produce and publish a charging policy.

The complaint

1. Mrs B complained the Council had not dealt properly with her father’s financial assessment and based demands for payment on levels of care Mr C did not received. Mrs B says this caused Mr C distress and financial difficulty and put his family to time and trouble pursuing the matter.

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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. 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)

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How I considered this complaint

5. I considered:
• Mrs B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
6. Mrs B and the Council’s comments on a draft decision were considered before I made a final decision.

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What I found

Legislation and Guidance

7. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, s. 14 (1, 4))
8. Councils should develop and maintain a policy setting out how they will charge people for the cost of care in settings other than care homes. This should include how they will apply their discretion within the charging framework locally. (Department of Health and Social Care, ‘Care and support statutory guidance’, 2016)
9. Councils must assess a person’s finances to decide what contribution he or she should make. (Care Act 2014, s.17 (1))
10. An individual’s income should be assessed net of any Income Tax and National Insurance contributions payable and net of housing costs and Council Tax. Where disability benefits are considered as income, councils should assess and allow for the individual user’s disability-related expenditure. (Department of Health and Social Care, ‘Care and support statutory guidance’, 2016)
11. Disability-related expenditure are costs incurred by a recipient of social care services that would not be incurred by someone who does not require social care services. (National Association of Financial Assessment Officers, ‘Good practice, training and induction guide: Volume 5: Assessing the costs of disability’)
12. Councils may exercise discretion to disregard some sources of income, set maximum charges or charge a percentage of the person’s disposable income. How such discretion is to be applied should be set out in the Council’s policy. (Department of Health and Social Care, ‘Care and support statutory guidance’, 2016)
13. People receiving local authority-arranged care and support other than in a care home need to retain a certain level of income to cover their living costs. Under the Care Act 2014, charges must not reduce people’s income below a certain amount. This is a weekly amount and is known as the minimum income guarantee. Between April 2018 and April 2020 this was £189 for Mr C. (Department of Health and Social Care, ‘Social care – charging for care and support’, 2019 )
14. The Council must give a written record of the financial assessment to the individual to whom it relates. (Care Act 2014, s. 17 (6))
15. Camden’s approach is to assess contributions according to the minimum standards contained within the Care Act, The Care and Support (Charging and Assessment of Resources Regulations) and the Care and Support Statutory Guidance. The Council has factsheet and information on its website that together explain how it charges for non-residential care and exercises discretion, but it does not have a policy document.

What happened

16. This chronology includes key events and does not cover everything that happened.
17. Before Mr C started to receive care in his home, he completed a financial assessment form to find out the amount he would have to contribution to his care costs. Mr C did not include details of his fuel expenses, rent arrears, travel expenses or disability related expenses.
18. Without evidence of Mr C’s expenses, the Council assessed Mr C as responsible for paying £300 towards his care costs each week. It told Mr C he would receive a monthly invoice showing how much he needed to pay. The Council sent Mr C a copy of the assessment and a factsheet explaining how it was undertaken. It asked him to complete a form for his disability related expenses and provide statements for each of his bank accounts for the previous three months.
19. In March 2019, Mr C started to receive 8 hours 45 minutes of home care a week at a cost of £158.79. The cost of Mr C’s care was below £300 and therefore he was responsible for the full cost of his care.
20. The Council sent Mr C a letter asking him to provide details of his disability related expenses and bank statements.
21. Mr C did not pay his care invoices. In May 2019, the Council sent Mr C a reminder of the outstanding debt he owed to the Council for his care costs.
22. In June 2019, Mrs B gave the Council Mr C’s bank statements and disability related expenses form. Mr C advised there were no receipts for his disability related expenses because his daughter, Mrs B, paid for these in cash.
23. The Council reassessed Mr C and reduced the amount he needed to contribute to his care from March 2019 onwards. It assessed Mr C’s contribution as being £54.38 a week. After paying his care cost and disability related expenses, Mr C was left with £189 a week which met the minimum income guarantee. The Council sent Mr C the financial assessment and a new invoice for March to the start of June 2019. It asked Mr C to provide receipts for any other expenses he had.
24. In July 2019, Mrs B provided the Council with gas receipts, water bills and a bank statement. She told the Council that her father had a bank loan to repay and was in arrears with his service charges. She said he also had travel expenses for weekly medical appointments.
25. The Council reviewed Mr C’s care contribution. Mr C’s aggregate costs for utilities was under the threshold above which excess expenditure on utilities would be considered as a disability related cost so there was no change to the amount he had to pay. The Council asked Mr C to provide his most recent gas and electricity statements and receipts for his taxi journeys covering the previous six to eight weeks. The Council sent Mr C a reminder letter for the outstanding debt he owed for his care costs.
26. In August 2019, Mrs B contacted the Council and queried why some of Mr C’s expenses were not included in the financial assessment. The Council gave Mrs B general information about financial assessments. It asked Mrs B to get signed authorisation from Mr C to allow it to speak to her about his case.
27. The Council spoke to Mrs B again to give her more information about how it undertook a financial assessment. It sent her an information leaflet that explained the income and expenditure considered in the financial assessment. The Council confirmed it did not take account of a customer’s debts and advised Mr C would need to repay these out of his disregarded income. It suggested Mr C try to renegotiate his loan repayments with his bank and asked for details of his rent arrears.
28. The Council spoke to Mr C’s social worker. The social worker advised Mr C had capacity to make financial decisions and he had told him about the need to complete a financial assessment. The Council asked his social worker about Mr C’s need for transport to medical appointments. He advised Mr C could use public transport and that if he could not, hospital transport was available.
29. Mr C had still not paid anything towards his care costs. In August and September 2019, the Council sent Mr C reminders about the debt he owed to the Council for his care costs.
30. Mrs B queried the hours of care Mr C was receiving. The Council said it expected carers to stay for their allotted time and would follow this up with the care agency. The Council asked Mrs B to provide information about the date she believed a carer had left the visit early. On the date Mrs B identified, records show the care agency provided the correct hours of care.
31. Another family member contacted the Council querying why it had not reduced the invoices for Mr C’s care to reflect the temporary reduction in service between March and April 2019. The family cancelled evening calls for a fortnight before reinstating them. The Council explained Mr C needed to make the same contribution for this fortnight and his contribution would only decrease if he received less than three hours support a week.
32. Mrs B asked the Council to review the contribution Mr C had to make to his care because he had not been able to renegotiate his loan repayments and he had rent arrears.
33. The Council arranged for the Credit Control department to suspend action on Mr C’s case whilst it resolved the issues raised by Mrs B about Mr C’s financial assessment. The Council invited Mrs B and Mr C to meet with it to go through Mr C’s financial assessment and his expenses.
34. The Council received written consent to speak to Mr C’s daughters about his case in October 2019.
35. In November 2019, the Credit Control department sent Mr C another reminder letter for the debt he owed for his care costs. Mrs B contacted the Council to query this. The Council advised it sent the letter in error and confirmed the Credit Control department had put a hold on Mr C’s case so no letters would be sent for two months.
36. The Council met with Mr C and Mrs B in January 2020. Mr C’s General Practitioners were also present. The attendees discussed appointeeship and income maximisation for Mr C. The Council advised it would consider any increase in Mr C’s income in the financial assessment for his care.
37. Mr C completed another disability related expenses form. He provided information about his electricity, food, travel, medical and washing costs and the amount he spent replacing items in his home.
38. The Council sent Mr C a revised assessment in February 2020, Mr C’s contribution to his care was unchanged. The Council asked for receipts for Mr C’s medical and transport costs. It also asked for copies of Mr C’s bank statements from May 2019 onward for both his accounts.
39. In March 2020, the Council wrote to Mrs B and explained that once it had received the information it had asked for, it would reassess Mr C’s financial contribution to his care. It advised Mrs B that with the current information, Mr C’s assessment was correct. It advised Mrs B to contact the Credit Control department to make a payment plan for Mr C’s arrears.
40. Mrs B told the Council Mr C was in hospital and asked it not to send letters to his house. Mrs B said she would forward receipts for Mr C’s eye drops and queried why the Council needed more bank statements. Mrs B said the reason Mr C was in debt with the Council was because it delayed resolving the issues with his care costs and asked for compensation. She asked the Council to send invoices and reminders to Mr C directly, because she was concerned if she received them, she would be liable to pay them. Mrs B also complained the Council had not supported her to get Lasting Power of Attorney for Mr C.
41. The Council emailed Mrs B in April 2020. It acknowledged Mr C had been admitted to hospital and that his care hours had increased from March 2020. It told her that Mr C’s invoices would be amended. The Council told her once it received receipts that evidenced Mr C’s expenditure, it would review his financial assessment. The Council clarified that it had bank statements for Mr C until May 2019 and needed statements from this date onwards.
42. The Council said it would ask the Credit Control department to suspend recovery action while it considered her complaint. It gave Mrs B contact information for the Credit Control department and suggested she discussed her father’s situation with the department directly. It also suggested she speak to the Council’s Rent Team about the difficulties Mr C was having paying his rent arrears.
43. In April 2020, Mrs B emailed the Council outlining where she believed the Council had failed and challenged its decision not to award compensation. Mrs B emailed the Council again in May 2020 because she had not received a response. The Council said it had the dates Mr C was in hospital, advised he would not have to contribute to his care costs from the 29th day of admission, and the next invoice would show this adjustment. It confirmed it would send the invoice to Mr C directly.

Complaint procedure

44. Mrs B made a formal complaint in September 2019. She complained the Council had not responded to her emails and she had received a demand letter from the Credit Control department.
45. The Council advised it had asked her for signed authorisation to communicate with her about her father’s care and for Mr C to provide information about expenses and costs but neither had been received. The Council explained because Mr C had not paid his care costs, the Credit Control department wrote to him before taking recovery action. It acknowledged there was a delay in responding to one of Mrs B’s emails, explained this was because the staff member was on leave and apologised. The Council offered to visit Mr C to collect information to help with his financial assessment.
46. In October 2019, Mrs B wrote to the Council to ask it to consider her complaint at stage two of its complaint procedure. She complained:
• The Council had not taken account of Mr C’s mental health when it asked him to provide information for his financial assessment. Mrs B said Mr C’s mental health difficulties made it difficult for him to get the information the Council asked for and the Council had not offered him any support.
• There were other occasions when the Council delayed responding to her.
• The invoices the Council sent to Mr C were wrong. Mrs B said the Council should suspend recovery action until the invoices were amended.
• Mr C’s loans and debts were not considered in his financial assessment.
47. Mrs B told the Council she emailed the Council a completed consent form in February 2019 and sent another new copy with her complaint.
48. The Council sent Mrs B its stage 2 response in November 2020. The Council confirmed it received consent from Mr C for the Council to speak to Mrs B about his case in October 2019. It said it was not clear what had happened to the consent form she sent in February 2019 and apologised for any inconvenience caused.
49. The Council explained how much Mr C had to contribute towards his care. It confirmed which costs it considered within the assessment and explained why others were not. It advised that Mr C’s loan repayments were not a disability expense and he would have to pay this out of his disposable income. The Council confirmed it invoiced for 8.75 hours care each week, and this was equivalent to 8hrs and 45 minutes.

Analysis

50. The Department of Health and Social Care’s ‘care and support statutory guidance’ says councils should develop and maintain a policy setting out how they will charge people for the cost of care in settings other than care homes and explains how it applies the discretion afforded to it by the Care Act 2014 and accompanying statutory guidance. The Council does not have a charging policy document, and this was fault.
51. The Council completed Mr C’s financial assessments following the Care Act 2014 and the Department of Health and Social Care’s ‘care and support statutory guidance’. The Council asked Mr C and Mrs B for evidence of Mr C’s income and expenditure, and reassessed Mr C’s financial contribution to his care each time it received new information. The information the Council asked for was evidence it had not previously received that was relevant to the financial assessment.
52. The statutory guidance does not include allowances for debt repayment. Therefore, the Council was entitled to disregard Mr C’s debt repayments in its financial assessment. The Council advised Mr C to renegotiate his loan repayments, so they were more affordable. Neither Mr C nor Mrs B gave the Council evidence that they had tried to renegotiate his loan repayments. The Council explained that without evidence of this, it would not consider using its discretion to take account of Mr C’s loan repayments in his financial assessment. There was not fault with the Council’s approach to Mr C’s debt repayments.
53. The Council followed guidelines provided by the National Association of Financial Assessment Officers to calculate Mr C’s disability related expenses. Mr C’s total aggregate costs for utilities was under the threshold above which excess expenditure on utilities would be considered as a disability related cost. There was no fault with how the Council considered Mr C’s disability related expenses.
54. From March 2019, Mr C received eight and a half hours of care a week. Between March 2019 and May 2020, Mr C received 45 hours over and above his contracted care hours. Although there were occasions when the carer’s visits were shorter than the scheduled visit, this was more than made up during other visits.
55. For a fortnight between March and April 2019, Mr C’s family cancelled his evening calls. During this period, he received care for 5 hours 15 minutes a week, rather than 8 hours 45 minutes. The cost of Mr C’s care for this period was greater than £54.38 a week and therefore he needed to contribute the same amount towards his care as he had done before the decrease in care hours. The Council did not overcharge him.
56. In summary, there was no fault in how the Council undertook Mr C’s financial assessment or how it calculated the amount Mr C owed in care costs.
57. The Council spoke to Mr C’s social work who advised he had no concerns about Mr C’s capacity to engage in his financial assessment or to understand he had to contribute to the cost of his care. When Mrs B raised queries about the assessment, the Council provided her with information and met with her and Mr C to discuss and explain the financial assessment. In addition, the Council put recovery action on hold while it considered Mrs B’s complaint. This is evidence the Council considered Mr C’s capacity to engage in the assessment and offered him support.
58. There were times when the Council was slow to respond to Mrs B. In addition, it did not receive the consent form Mrs B says she sent in February 2020. The Council apologised for this during its complaint procedure. The apology was a suitable remedy for the injustice caused to Mrs B.

Agreed action

59. Within three months of the final decision, the Council will:
• Produce a charging policy document and make it available to the public on its website.
• Apologise to Mr C and Mrs B for the uncertainty caused by not having a charging policy document that was publicly available.
60. The Council should provide the Ombudsman with evidence these actions have been completed.

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Final decision

61. I have completed my investigation and uphold Ms B’s complaint. Ms B and Mr C were caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman