Summary: There was no significant fault, in how the Council assessed the complainant’s finances for a contribution to her care fees, nor how it pursued her for arrears. However, the Council did not properly deal with correspondence about this issue. It failed to recognise there was potential disability related expenditure (DRE) to disregard, and does not appear to have responded to complaints about the standards of care provided to the complainant. It has now agreed to determine whether there is valid DRE to disregard, and offer a financial remedy for the complainant’s representative’s time and trouble in pursuing these matters.

The complaint

1. The complainant, to whom I will refer as Mrs L, is represented by her daughter, to whom I will refer as Mrs G.
2. Mrs G complains the Council:

• allowed Mrs L to agree to care fees, despite the fact she lacked capacity to do so;
• increased Mrs L’s care package, without explaining this would lead to an increase in her contribution to her fees;
• failed to respond to several complaints she raised about the standards of care Mrs L was receiving.

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The Ombudsman’s role and powers

3. 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)

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How I considered this complaint

4. I reviewed Mrs G’s correspondence with the Council, and the Council’s assessments of Mrs L’s finances.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. In October 2016, the Council commissioned a domiciliary care (‘home care’) package for Mrs L. It made a financial assessment of Mrs L, and concluded she should not contribute anything to her fees. The Council says it was informed at that time a particular named person (not Mrs G) was responsible for managing Mrs L’s money.
7. In October 2018, the Council re-assessed Mrs L’s finances. It concluded she should now be contributing approximately £27 per week. The Council says it emailed this assessment to the named person. After that, it sent an invoice every four weeks to this person, but did not receive any payments from Mrs L.
8. In April 2019, the Council re-assessed Mrs L again. It visited her home and completed the assessment form. The Council says Mrs L then advised that Mrs G was now responsible for managing her money. The outcome of the re-assessment was that Mrs L should be contributing approximately £129 per week to her fees.
9. Mrs G says the Council contacted her around this time, to advise Mrs L’s account was in approximately £2000 of arrears.
10. Mrs G obtained Lasting Power of Attorney (LPA) for Mrs L’s finances in July 2019. She began making payments towards Mrs L’s ongoing care fees, but she declined to address the arrears on the account, and informed the Council it should approach the person who had been managing Mrs L’s money before she took responsibility in April.
11. Mrs G says she emailed the Council several times in May, June, August 2019 and without response. In her emails she complained she was being chased for Mrs L’s arrears, had received no explanation of the charges or why they had increased, and that she had made complaints about the quality of the Mrs L’s care provider.
12. On 19 August, a social worker emailed Mrs G. The social worker said Mrs L’s arrears needed to be paid, and that the Council would consider charging interest if they were not. Mrs G replied to reiterate the Council should approach whomever was responsible for Mrs L’s finances before April. She also asked the social worker to address her complaints about the care provider, including that Mrs G had not been dressed for day care one morning, that her medication had been missed, and that mouldy food and used gloves had not been properly disposed of.
13. The social worker replied to say she would address Mrs G’s complaints. However, she warned the Council would likely not consider it relevant who had been responsible for Mrs L’s finances prior to April.
14. Mrs G then emailed the Council’s finance team. She asked who had been responsible for Mrs L’s finances before April, and why the arrears had accrued to the level they did. Mrs G said she had previously asked this question without response.
15. Mrs G explained again her complaints about standards of care, and questioned whether this would amount to a claim for negligence. She also said Mrs L could not afford the assessed contribution, because of her need to purchase items related to her care, such as incontinence pads.
16. On 4 October, Mrs G emailed the finance team again. She said the Council was now charging interest on Mrs L’s arrears, but had still not answered her questions. She reiterated she would not take responsibility for any costs which had accrued before April, and said the Council had not informed Mrs L she would be due to pay a contribution. Mrs G said she wished to raise a formal complaint.
17. The Council provided a stage 1 response on 5 November. It explained it had assessed Mrs L to be eligible to contribute to her care fees in October 2018, and had sent letters about this then and in April 2019.
18. The Council said Mrs L should have been contributing £27 per week from October, rising to £129 and then £136 on 1 and 8 April 2019 respectively. However, the first payment it had received was £546 in June 2019.
19. The Council acknowledged Mrs G had only been recently been responsible for Mrs L’s finances, but explained she (Mrs L) remained liable for the total amount. The Council said its records showed “other members of the family” had been in contact with it before Mrs G took over, but repeated no payments had been made before June 2019. The Council said the arrears stood at nearly £2000 and offered to allow Mrs G to make a payment arrangement.
20. Mrs G raised a stage 2 complaint, which the Council received on 28 November. She asked the Council to suspend interest on Mrs L’s arrears while the complaint was ongoing.
21. Mrs G said she had personally received no letters about Mrs L’s care costs before April, and that she had found none at Mrs L’s home. She asked the Council to provide evidence it had sent notifications about this, along with any agreement which had been made to increase Mrs L’s contributions. Mrs G also asked the Council to explain how the contributions were calculated, as she said Mrs L’s income had not changed.
22. Mrs G reiterated she would not take responsibility for the arrears from before April, and asked the Council to write these off. She also reiterated her complaint about the standards of care Mrs L had received, and the Council’s failure to respond to her correspondence, and complained the Council had not advised her how she could reduce Mrs L’s costs.
23. The Council replied on 13 January 2020. It said it had written on 30 April 2019 to confirm the increased contribution from 1 April 2019. However, the Council acknowledged its policy was to give two weeks’ notice on an increase, which it had not applied in this case. It therefore agreed to recalculate Mrs L’s arrears, bringing them down by approximately £663.
24. The Council reiterated it had written on 30 April 2019 about the increased charge, and said it was enclosing another copy of this letter. The Council also said it had visited Mrs L’s home on 19 April 2019 to discuss contributions, and had “notes of email conversations” between Mrs G and the Council’s finance officer during which contributions were discussed.
25. The Council explained it had wrongly calculated Mrs L’s contribution in October 2018, and that the £27 contribution should actually have been £136 then as well. As this had been the Council’s own error it had not backdated the full charge to October. However, the Council said it could find no unanswered complaints it had received from Mrs G, either about the contributions or Mrs L’s standards of care.
26. Mrs G referred her complaint to the Ombudsman on 29 January. She explained she had been in contact with the Council about Mrs L for the previous three years, but knew nothing about any contributions being due until April 2019. Mrs G said she understood the Council had previously been in contact with one or more of her siblings, from whom she was estranged. In April, a social worker had contacted her to warn her about Mrs L’s arrears. Mrs G had said at that point she would not discuss any charges from before April as she could not explain what had happened.
27. Mrs G acknowledged a financial assessor had visited Mrs L in April, and had called her during the visit. The assessor had asked her some questions and taken a copy of Mrs L’s bank statement. Mrs G had then received a copy of Mrs L’s care account statement, showing the arrears.
28. Mrs G said she had had to chase the Council several times to get a breakdown of the costs, and had kept reiterating it needed to stop chasing her for Mrs L’s pre-April arrears. In November, the Council had begun charging interest on the arrears, and had not suspended the interest as she had requested.
29. Mrs G said she had no evidence the Council had sent a letter on 30 April 2019. She said Mrs L was deaf, had poor eyesight and dementia and did not consider she would understand such a letter, or the visit she had from a finance assessor. Mrs G said the Council did not contact her to discuss the finance form, despite being aware she was applying for LPA.
30. Mrs G also said the Council had not enclosed the letter it had said it would in its complaint response. She listed and enclosed copies of her correspondence with the Council which she said had not received a response. Mrs G also said the Council had added some additional adjusted charges to the Mrs L’s invoice for that month, without explanation.
31. Since we accepted Mrs L’s complaint for investigation, the Council confirmed it had written off £107 from the arrears, which represented the interest it had charged before Mrs G had taken responsibility for Mrs L’s finances. The Council has also confirmed Mrs L’s account has now been fully paid off and is up to date.

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Legislative background

32. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25%. The Council can take a person’s capital and savings into account subject to certain conditions. 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. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)
33. Annex C of the Care and Support Statutory Guidance sets out how authorities should calculate a person’s contribution to their care.

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Analysis

34. The Council has given me the name of the person whom Mrs L had said was managing her finances, before Mrs G took over this responsibility. I do not know exactly who this person was, but from context, it appears to be Mrs G’s sister. I understand she and Mrs G are estranged. It is not clear whether there was any formal arrangement for this person to manage Mrs L’s finances, although I note there is no suggestion she held, or holds, LPA, as Mrs G does.
35. I have no more information about the pre-April 2019 arrangements. However, I can see the Council undertook a financial assessment in October 2018, which calculated (albeit wrongly) Mrs L should be contribute £27 per week towards her care fees. Unfortunately, no payments were forthcoming from her at that time.
36. I note Mrs G says she received no notification from the Council, before April 2019, of Mrs L’s requirement to contribute. This was despite being in contact with the Council about Mrs L’s care needs. She also says she could find no correspondence about the contribution at Mrs L’s home.
37. Given Mrs G was neither formally, nor informally, responsible for Mrs L’s finances before April, I would not consider it fault if the Council did not discuss it with her at that time. Mrs L’s care needs, and her financial contributions, are separate considerations, and so a discussion about one should not necessarily involve a discussion of the other. And, moreover, the Council had been told it should speak to a different person about Mrs L’s finances.
38. I cannot speculate why Mrs G could not find any correspondence from October 2018 at Mrs L’s house. This does not mean, however, the Council did not send it, as it is equally possible it was removed or disposed of by Mrs L or another family member without Mrs G becoming aware of it.
39. I accept it would have made for unpleasant news for Mrs G when she found out about Mrs L’s arrears. But I have no reason to think the Council did not follow the correct process in assessing Mrs L’s finances; and while it did, by its own admission, miscalculate her contribution at that time, this was to Mrs L’s benefit.
40. Mrs G repeatedly informed the Council she would not take responsibility for Mrs L’s arrears pre-April, and advised it should contact whomever was responsible before then. This, however, is a misconception – the arrears were Mrs L’s, and she was liable for them, both before and after April 2019. As the person who was responsible for Mrs L’s finances, this means it was for Mrs G to arrange payment. It was not for the Council to chase up a different family member, even if they had nominally been responsible before April.
41. There is, clearly, a strong implication here the other family member(s) involved did not properly manage Mrs L’s finances. I do not dismiss Mrs G’s dissatisfaction about it, but this, ultimately, is a private matter within Mrs L’s family. The Council is not party to this dispute, but it is entitled to pursue payment of the arrears.
42. I appreciate also Mrs G feels the Council should not have allowed Mrs L to make her own decisions about whether to agree to the contributions. She said Mrs L is vulnerable, has dementia, poor hearing and poor eyesight, and that English is not her first language.
43. I cannot see, on the evidence available to me, whether the Council has ever undertaken a mental capacity assessment of Mrs L. However, in order to grant LPA, a person must be considered to have mental capacity, and Mrs G obtained LPA for Mrs L in July 2019.
44. The only conclusion I can draw, therefore, is that – from a legal standpoint – Mrs L had capacity to decide how to deal with her finances, at least at that time. If she did not, Mrs G should not have been able to obtain LPA. So I cannot say it was fault for the Council to deal directly with Mrs L, despite her limitations.
45. In any case, I again believe this element of the complaint has arisen from something of a misconception.
46. When a local authority commissions a care package for a person, it should then make an assessment of their finances. The charging rules are complex, but essentially, the local authority will total up the person’s income and their assets, and then exclude certain set amounts. Any money which is left over, the local authority can then take as a contribution towards the person’s care fees; topping up the difference between that, and the actual cost of the package, from its own funds.
47. If the person’s assessed contribution is more than the total cost of the package, they will be a full-cost payer, and the local authority will contribute nothing. On the other hand, if the person has no money left over from their income and assets, after the local authority has excluded the set amounts, then they will contribute nothing, and the local authority will pay the full cost.
48. In Mrs L’s case, there is no dispute she needs a care package, and no question has been raised whether it should continue. This being the case, the Council was bound to assess her finances, and then charge her the appropriate contribution. There was no scope for Mrs L, or anyone acting on her behalf, to negotiate about this.
49. Again, I accept Mrs G questions how the arrangements came about before April 2019. But, regardless of the questions of Mrs L’s capacity, the Council was within its rights to charge her a contribution to the fees, from the point where it assessed her as being eligible to make such a contribution. And the fact the fees were not being paid at that time is not the result of an administrative failure by the Council.
50. Similarly, it appears to be a misconception that Mrs L’s contribution increased because of changes to the care package. This is, again, not the case – Mrs L’s contribution increased because the Council re-assessed her finances, and calculated she was due to pay a higher contribution than she had been, because it had used the wrong figures in its previous assessment. An increase in the care package could not affect how much Mrs L was due to contribute, because her contribution was already the maximum it could be under the charging rules.
51. I recognise it was fault the Council used the wrong figures initially; but, as I have said, this was to Mrs L’s benefit, as she was significantly undercharged for the first six to seven months of her package, and the Council has not sought to recover this money. There is, therefore, no injustice to Mrs L arising from this fault.
52. So I have found no significant fault in the substantive points Mrs G has raised. Despite this, there are several specific points of concern I have about the Council’s handling of its contact with Mrs G.
53. First, it appears Mrs G sent a number of emails to the Council in between May and August 2019 which it did not answer. For example, I have seen copies of emails sent by Mrs G on 18 June and 1 July, which received confirmatory auto-responses from the Council’s email account, but for which there appears to have been no response.
54. Second, and more critically, on 19 August Mrs G emailed the Council’s finance team to say Mrs L could not afford her contribution, because she needed to purchase items related to her condition.
55. This is in fact a specific feature of the charging rules, called ‘disability-related expenditure’, or DRE. When assessing a person’s finances for a domiciliary care package, local authorities are required to consider any additional expenditure they may have, specifically because of their condition – for example, on specialist equipment or additional utilities costs. If the local authority accepts this expenditure is reasonable, they should disregard this money from their assessment of the person’s income, thus reducing their contributions.
56. It is not for me to say whether Mrs L has additional, reasonable DRE. However, I am concerned the Council does not appear to have addressed this point. I would expect it to have at least asked Mrs G to provide evidence of the expenditure, for it to consider.
57. Third, Mrs G raised concerns about the standards of care Mrs L was receiving. In particular, on 20 May 2019, she emailed the Council to say she was in dispute with the care provider over missed or late calls. She then emailed again later that day, to say she had been told Mrs L had not been dressed that morning when transport arrived to take her to day care, and had not been given her breakfast or medication.
58. During Mrs G’s email exchange with the social worker on 19 August, she again raised this incident, and also reported incidents of finding mouldy food and protective gloves which has not been properly disposed of.
59. However, in the Council’s formal complaint response, it said only it had no record of any unanswered complaints about standards of care.
60. I asked the Council to give me copies of the complaints it had dealt with on this subject. In response, it provided me one, from November 2019. This related to an incident where Mrs L was believed to have run out of incontinence pads; but appears to have been a misunderstanding, which was quickly resolved.
61. It is difficult for me to draw any firm findings here. It is evident Mrs G had concerns about Mrs L’s care provider, but I cannot say, on the evidence, whether the Council was formally brought into these discussions. For example, I can see Mrs G said, in an email of 20 May, that she was “in constant dispute with [the care provider]” about missed or late calls, suggesting she had not complained direct to the Council about this. While the Council retains ultimate responsibility for the provision of Mrs L’s care, I cannot criticise it for having no records of a complaint it was not party to.
62. But, even accepting this, Mrs G made several specific points about the care provider in her emails to the Council about the charging issue, and the Council did not address these points. So I cannot consolidate this with the comment in its complaint response, that it had no records of any unanswered complaints.
63. I understand the care provider in question is no longer in operation, and Mrs L’s care package has been taken over by a different provider. This being the case, it does not appear possible to meaningfully investigate any unanswered complaints Mrs G had about it now. I also cannot say whether these complaints should have been upheld, and I consider it is too speculative to say this represents an injustice to Mrs L.
64. But, either way, there is clear fault in the Council’s poor handling of Mrs G’s correspondence. I am satisfied this has caused Mrs L an injustice, because it is possible the Council should have disregarded some DRE during its financial assessments. The Council should take steps to remedy this now.
65. I also consider Mrs G has been caused an injustice, because of the time and trouble she has been put to in pursuing these matters, which the Council should also remedy.

Recommended action

66. Within one month of the date of my final decision, the Council has agreed to:

• consider whether it should disregard any disability related expenditure from its assessment of Mrs L’s finances, in line with the Care and Support Statutory Guidance. It should allow Mrs G to submit evidence in support of any such claim. If it decides Mrs L does have valid DRE which should be disregarded, the Council should then consider whether to backdate the disregard to when Mrs G first raised the point; and
• offer to pay Mrs G £200, to reflect her time and trouble in pursing these matters.

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Final decision

67. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman