Summary: Ms C complains the Council wrongly pursued arrears for home care charges and reneged on an agreement to fund residential care. The Council was at fault for charging for home support services without a financial assessment, delayed in completing a financial assessment and failed to consider community based alternatives for Mr D earlier. To remedy the complaint the Council has agreed to waive some home support charges, pay Ms C £300 in acknowledgement of the time, trouble and stress the Council’s faults have caused her. It will also review procedures and remind staff about the importance of completing financial assessments as early as possible.

The complaint

1. The complainant who I call Ms C, complains about services provided to her father, Mr D. Ms C complains:-
1. the Council wrongly and aggressively pursued Mr D for unpaid care charges; and,
2. reneged on an agreement to fund long term residential care.
2. Mr D has mental health problems and his family supported him in the community. Ms C says because of the Council’s actions she has had time and trouble in resolving matters; and stress and anxiety when the Council was not meeting Mr D’s care needs.

Back to top

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 an organisation’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 may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
5. If we are satisfied with an organisation’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)

Back to top

How I considered this complaint

6. I spoke with Ms C and considered information she provided. I asked for information from the Council and several questions. As well as the Council’s response to my enquiries I considered:
1. Care Act 2014 and the associated Care and Support Statutory Guidance (CSSG);
2. Mental Capacity Act 2005 and the associated Code of Practice;
3. Mr D’s care assessments.
7. Ms C and the Council had an opportunity to comment on a draft of this statement. I considered any comments made before reaching a final decision.

Back to top

What I found

Background information

8. Mr D has mental health problems which affects his ability to self-care. He also has physical health problems which during the period of the complaint worsened.

What should have happened

9. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in settings other than care homes. A council has discretion to charge for non-residential care following a person’s needs assessment. Where it decides to charge a council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
10. Paragraph 10.84 “Local authorities must ensure that sufficient time is taken to ensure the plan is appropriate to meet the needs in question, and is agreed by the person the plan is intended for. The planning process should not unduly delay needs being met.”
11. Paragraph 10.85 “Due regard should be taken to the use of approval panels in both the timeliness and bureaucracy of the planning and sign-off process. In some cases, panels may be an appropriate governance mechanism to sign-off large or unique personal budget allocations and/or plans. Where used, panels should be appropriately skilled and trained, and local authorities should refrain from creating or using panels that seek to amend planning decisions, micro-manage the planning process or are in place purely for financial reasons. Local authorities should consider how to delegate responsibility to their staff to ensure sign-off takes place at the most appropriate level. In cases or circumstances where a panel is to be used, and where an expert assessor has been involved in the care and support journey, the same person or another person with similar expertise should be part of the panel to ensure decisions consider complex or specialist issues.”
12. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. A person aged sixteen or over must be presumed to have capacity to make a decision unless it is established, they lack capacity.

What happened

13. Mr D was living in the community. Mr D’s family support him, in particular, Ms C who manages his finances. In 2016, due to concerns raised by Ms C and following an assessment the Council provided Mr D help with cooking, cleaning, and a prompt to take his medication. It also agreed to look at supported accommodation. The Council did not complete a financial assessment.
14. In 2017 the Council carried out a financial assessment. In March 2018 the Council says it contacted Ms C to discuss Mr D’s arrears of home care charges. It spoke with Ms C in April 2018 emailing copies of outstanding invoices. The Council tried contacting Ms C every two months over the next ten months and sent a statement of account in October 2018. In February 2019 the Council decided to pursue the outstanding arrears and threatened Mr D with court action. Ms C says she received no contact from the Council until 2019 when she was told about the debt.
15. The Council assessed Mr D as needing supported accommodation in 2017, 2018 and 2019. There is no evidence the Council actively and consistently pursued this during this period. In January 2020 Mr D’s health had worsened, the Council assessed him as needing residential care. The Council identified a care home and agreed its funding in March 2020.
16. Ms C delayed the move because Mr D’s GP advised that he was at risk because of his increased physical health needs and the rise in care home COVID related deaths. Instead, as well as informal family support; the Council increased Mr D’s care package to three calls a day.
17. In September 2020 the Council identified care home did not have a vacancy available for Mr D. X sought advice from Y, a manager about an application for funding for an alternative care home. Y told X how to strengthen the application to include community based alternatives considered and why residential care was the best choice.
18. X applied to Care Support Plans Assurance Meeting (CSPAM) to approve funding, in January and February 2021 for an alternative care home. The funding panel rejected these applications. It asked X to:-
• look at less restrictive alternatives such as extra care sheltered housing,
• complete a best interest meeting to consider what was in Mr D’s best interests,
• update Mr D’s care assessment.
19. It also provided practical suggestions to X about support for Mr D in the community including an extra evening call to help with continence and contacting the GP for advice. Ms C says Mr D never received the additional support or advice.
20. On 10 March 2021 Ms C complained. Y responded on 29 April. Y apologised for the delay in responding and not meeting the Council’s usual timescales. Y explained why the Council did not approve funding for residential care.
21. On 12 March 2021 X assessed Mr D had capacity to decide where he wanted to live but it was the view of his family and the professionals involved that he was unsafe living in the community. The panel reconsidered the funding application on 8 June and approved funding for a residential placement. Mr D moved into a care home on 4 August 2021.
22. Ms C requested a new financial assessment for Mr D in February 2019. The Council completed the assessment in September 2021 and credited £4871.10 to Mr D’s home care charges account.
23. In December 2021 the Council considered a waiver for the outstanding arrears as Ms C said she was unaware of them. The Council agreed to waive charges between 5 April 2018 and 7 April 2019 creating a credit of £3996.27. This resulted in an outstanding debt of £4019.07. There are also current outstanding residential care fees of £1939.69 for Mr D to pay.

Was there fault causing injustice?

Charges

24. The Council is at fault for failing to initially properly assess Mr D’s home support charges, and contact Ms C who was supporting Mr D with his finances.
25. The Council had a waiver policy which it only applied after Ms C complained. The Council should have considered a waiver earlier and the failure to do so is fault.
26. The Council is also at fault for not completing a financial assessment until more than two years after Ms C’s request and her challenge of the care charge. This caused Ms C uncertainty about whether the Council had correctly calculated the charges.
27. I find no fault in the way the Council pursued Mr D for the accrued debt. While I understand Ms C was challenging the debt the Council has a duty to protect public funds. I also do not consider the Council was over aggressive when pursuing the debt. It contacted Ms C several times to discuss the debt before threatening legal action. In addition, it does not seem Mr D has paid anything towards his home support charges.
28. But for the faults identified Mr D might not have got into as much debt as he did. Ms C had time, trouble, and stress in dealing with the accrued debt and complaining to the Council.
29. I cannot recommend the Council waives all of Mr D’s debt. This is because Mr D was receiving services. When Ms C became aware of the charge she did not cancel the service or make any other arrangements. It would however be useful if the Council provided Ms C with a statement of account including details of the waiver, outstanding balances and contact her about a payment plan.

Funding for residential care

30. The use of a funding panel is not against CSSG. It also seems the questions raised at the second funding panel about alternatives considered are valid as at the time Mr D wanted to stay living in the community. I therefore do not consider on balance the Council was deliberately trying to delay the funding decision.
31. However, officers should have considered these alternatives before the funding panel. Supported living was an issue Mr D and Ms C raised from 2016. Similarly Mr D’s continence was a continuing issue which the Council should have addressed earlier.
32. There was no suggestion Mr D lacked capacity to decide where he wanted to live. It is therefore unclear why the funding panel asked for a capacity and best interest assessment. The care assessment and support plan identified Mr D’s risks of living in the community. While I understand it is good practice for X to have updated the assessment, Mr D’s needs had increased it therefore was not a reason to reject the funding. It is also unclear, because there is no record of the 2020 CSPAM meeting, why the Council reached a different decision in these circumstances.
33. For the reasons set out above I consider there was an avoidable delay in funding approval of five months which caused Ms C stress, time, trouble, and anxiety.

Back to top

Agreed action

34. I have found fault in the actions of the Council which has caused Mr D and Ms C injustice. The Council has agreed to take the following actions to remedy the complaint:-
1. apologise to Mr D and Ms C for the failures I have identified in this statement;
2. pay Ms C £300 to acknowledge the time, trouble, stress, and anxiety the Council’s failures caused her;
3. remind staff about the importance of completing financial assessments quickly and, if requested and within reason, when there is a challenge about an outstanding debt;
4. review and if necessary, provide guidance for those presenting applications for funding and their managers about what information panel members need for funding approval;
5. record and keep minutes of funding panels.
35. The Council should complete (a)-(b) within one month of the final decision and (c) to (e) within three months of the final decision.

Back to top

Final decision

36. I have found fault causing injustice. I consider the agreed actions above are suitable to remedy the complaint. I have now completed my investigation and closed the complaint based on the agreed actions above.

Back to top

Investigator's decision on behalf of the Ombudsman