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East Sussex County Council (17 009 118)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 19 Jun 2018

The Ombudsman's final decision:

Summary: From early March 2016 the Council should have taken responsibility for all elements of Mr B’s care plan, commissioned services on his behalf, and invoiced him for a financial contribution. Instead the Council postponed taking responsibility. There is also no evidence that the Council carried out a proper assessment and planning process for Mr B in April 2016. To remedy fault causing Mr B injustice the Council will apologise to Mr B, refund care costs for which Mr B had been overcharged and write off Mr B’s outstanding care charges arrears.

The complaint

  1. Ms D on behalf of her father (Mr B) complains that:
  • There was fault in the way the Council assessed Mr B’s financial contribution towards the cost of a home based care package and in the way the Council communicated a decision to charge Mr B for his care.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. If there has been fault, the Ombudsman considers whether it has caused an injustice and, if it has, he may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))

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How I considered this complaint

  1. As part of my investigation I have:
  • Considered Ms D’s written statement of complaint
  • Spoken on the telephone with Ms D
  • Considered the response of the Council to Ombudsman enquiries and documents the Council provided

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What I found

  1. Statutory guidance on the Care Act 2014 is provided in a government publication called Care and Support Statutory Guidance (new edition March 2016) (SG).
  1. An assessment of care and needs under the Care Act 2014 is carried out if someone appears to need care and support. Assessment will decide whether the person has ‘eligible’ care needs. Following an assessment and a decision on eligibility a written care and support plan must be provided where a council has agreed to meet a person’s need.
  2. The service user is entitled to council financial support when the person’s savings and investments fall below a threshold known as the upper capital limit (£23,250). Below this limit the council provides financial help towards the care with the council arranging the service and paying the upfront costs or giving the service user direct payments to commission their own service. Persons with savings above the upper capital threshold are known as ‘self-funders’. In general self-funders arrange their own care (sometimes with the help of a council brokerage service) and make a contract with the provider directly. The council can arrange the care on the self-funder’s behalf with the service user paying the council an administration fee.
  3. Under s14 of the Care Act 2014 councils have a power to charge a service user for domiciliary and residential care services. Under s17 of the Care Act 2014 the Council must carry out a financial assessment before charging the service user. A financial assessment is an assessment of the service user’s means and the sum required as a contribution to the cost of care arranged by the council. Detailed statutory provisions on charging are given in the Care and Support (Charging and Assessment of Resources) Regulations 2014.
  4. In 2016 the Council published a guide for service users on charging called ‘The cost of your care and support’ (CS). Page 3 of CS said that ‘if Adult Social Care arrange care and support – either at home or in a residential or nursing home - then we will usually apply charges from the first date you start getting help. For residential care, we would usually expect you to pay the home directly. If you get care at home, we will invoice you every four weeks’. Page 3 of CS says that ‘we will try and arrange your financial assessments so that any costs you incur are not backdated for significant periods of time, which will help things be more affordable.’

What happened/background

  1. Mr B spent alternate periods in hospital and a rehabilitation centre in the period October 2015 to 23 December 2015.
  2. On 4 November 2015 the hospital made a referral to adult social care.
  3. A discharge planning meeting took place in the hospital on 20 November. The medical professionals involved in the meeting took the view that Mr B could be discharged within two weeks. The adult social care case log entry for 20 November 2015 refers to an intention that ‘ASC (adult social care) carry out an assessment with a view to refer Mr B to JCR (Joint Community Reablement).
  4. A social worker met with Mr B and his family in hospital on 8 December 2015 to carry out a care and support assessment. In a log entry for 8 December 2015 the social worker commented that ‘Mr B would like support to get up, washed and dressed every morning and support to shower x3 per week. He will also require support at lunch time and dinner time to assist with transfers and any toileting needs, and in the evening to prepare for bed. Mrs B manages all domestic and meal preparation and their daughter takes her shopping.’ Delivery of this package would require carers calling four times daily. The social worker identified Mr B as a ‘self-funder’ on the basis that joint savings were approximately £51,000. The log entry for 8 December 2015 evidences that finances were discussed when the social worker met Mr B and his family on 8 December. The log entry says:’ Explained about ASC finance threshold. Mr & Mrs B understood that they will have to self-fund the package of care until their savings go below £46,000. They will then need to contact SCD to request a financial assessment. ASC information pack provided and signed for.’ The social worker noted an intention to ‘complete support plan for x4 homecare calls and send to SPT (specialist placement team) to source agency’.
  5. A Core Assessment document completed on 10 December 2015 referred to a ‘Personal Budget’ of £403.7. The information and advice section of the Core Assessment recorded that Mr B requires a homecare package of x 4 calls per day to support washing , dressing, transferring , toileting and getting out of and into bed.
  6. On 11 December the social worker completed drafting a Care and Support Plan. The case log entry for 11 December 2015 says ‘draft support plan reassigned to (manager) for approval & to be forwarded to SPT to source home care provider’. The information and advice section of the care and support plan recorded that ‘Mr and Mrs B will be self-funding a homecare package of x4 daily calls to assist with personal care tasks and transfers’.
  7. On 11 December the social worker made a referral to a personal alarm/telecare service provider.
  8. On 17 December the specialist placement team told the social worker that it was having difficulty brokering a package for Mr B. Four care agencies had ‘turned down the contract’ and the placement team was waiting to hear from another care agency.
  9. On 18 December the social worker liaised with an occupational therapist about the appropriateness of the placement teas pursuing a single as opposed to double-handed package for Mr B. Following consultation with the occupational therapist, the social worker advised the placement team to source a package involving ‘x4 daily calls with one carer’.
  10. On 22 December a care provider (provider Y) told the placement team that, subject to an assessment visit, it could put in place a suitable package of care for Mr B (quantified at 14 carer hours per week).
  11. On 22 December the social worker met with Mr B and his family in the hospital. The social worker said that provider Y was able to provide an appropriate package of care for Mr B and that it would visit Mr B in his home on 29 December to further assess his needs. The log entry for 22 December 2015 says ‘Family made aware that if provider Y cannot meet Mr B’s support needs they can source another agency themselves or contact Social Care Direct to assist them’.
  12. Mr B was discharged from hospital on 23 December.
  13. On 23 December the social worker recorded in the case log that ‘Copy core assessment, support plan and discharge letter posted today’.
  14. Provider Y visited Mr B at home on 29 December. Provider Y agreed to start providing four sessions of double-handed care a day from 4 January 2016. Mr B paid invoices directly to provider Y for the care sessions. Provider Y billed Mr B directly for services with a total cost of £7,263.56 for the period 4 January 2016 to 31 May 2016.
  15. In early January 2016 provider Y liaised with the social worker about equipment issues. The social worker told provider Y that the community rehabilitation occupational therapist was involved with Mr B and was addressing this issue.
  16. Adult social care closed the case on 13 January 2016.
  17. Mr B requested financial assessment from adult social care in February 2016.
  18. The Council carried out a financial assessment of Mr B on 26 February 2016. The assessor visited Mr B and Mrs B at home to discuss finances.
  19. The financial assessor sent an email to an officer in the adult social care team on 26 February saying: ‘I visited Mr B today and completed the Financial assessment for his Lifeline service. Mr B advised he is currently paying privately for Homecare. He has requested an ASC assessment for this service. Please can he be contacted regarding this.’ ‘For information, the financial assessment outcome is that Mr B’s maximum client contribution towards any ESCC Non-residential services = £219.34 per week from 11.01.16.’
  20. The financial assessor gave Mr B a letter dated 26 February 2016 summarising the financial assessment. The letter said that ‘the current cost of your care arranged by the Council is £2.85. The maximum amount you have been assessed as able to contribute per week is £219.24. This amount is payable from 11 January 2016.’
  21. The financial assessor gave Mr B a report dated 26 February 2016 showing how Mr B’s maximum financial contribution was calculated. In an ‘additional information’ box the assessor noted that ‘client spent £10k on new car beginning January 2016’. The assessor also noted that ‘six week backdating applied’ to the start date for the ‘client contribution’ and that a direct debit form had been completed.’
  22. On 1 April Ms D on behalf of Mr B phoned the adult social care team about the need for further assessment of Mr B’s care and support needs.
  23. The Council says that a social worker completed a further care and support assessment for Mr B on 25 April.
  24. A social worker completed a care and support plan on 27 April 2016. The plan described personal care services to meet needs with start dates of 11 January 2016.
  25. The Council says that a ‘funding panel’ made a decision about the appropriate package of care to meet Mr B’s eligible needs.
  26. Ms D says that in late May 2016 Mr B received invoices from the Council in relation to the care package delivered by provider Y from January 2016 and the telecare service. Ms D challenged the invoices.
  27. Following review of the invoices, the adult social care finance team in June 2016 decided that an error had been made and that Mr B had been ‘double charged’ for services delivered in the period 11 January 2016 to 31 May 2016. The Council reimbursed Mr B £1,159.27.
  28. On 1 June the Council contracted with provider Y to provide Mr B with 3.5 care hours per week at £16.71 an hour.
  29. Ms D says that in the period 1 June 2016 to 31 November 2016 provider Y provided Mr B with two carers twice a day.
  30. The adult financial services team sent Mr B a letter dated 1 July 2016 saying that ‘from 4 July 2016, your maximum weekly assessed contribution is £222.59. However, based on the value of the Homecare and lifeline that you currently receive as of today the full cost of your care is £61.34 per week. You will only be invoiced up to the cost of your care services’.
  31. Mr B received invoices from the Council in relation to the care package commissioned by the Council on 1 June. On 24 October 2016 Ms D on behalf of Mr B phoned a Council officer to express disagreement about the Council invoicing Mr B for 3.5 hours of care from provider Y. Ms D requested a further care assessment and financial assessment for Mr B. The Council officer said that he would forward the requests to management. In the social care log the officer noted: ‘At present Mr B has 3.5 hours funded through ESCC (East Sussex County Council) but privately pays the agency for additional care hours each week.’
  32. In November 2016 Mr B said that he wanted to end the package of care provided by provider Y. Mr B considered that his needs could be met by his own family.
  33. At the beginning of December 2016 the Council cancelled its contract with provider Y.
  34. On April 2017 Ms D on behalf of Mr B sent an email to the Income recovery team complaining about the Council’s decision to invoice Mr B for services it arranged on behalf of Mr B and delivered by provider Y (3.5 care hours per week for the period 6 June 2016 to 28 November 2016). Ms D – who now was a financial affairs attorney for Mr B – refused to pay the invoice.
  35. On 17 May 2017 a Council officer (operations manager) sent Ms D an email saying that the Council had double charged Mr B for the period 11 January 2016 to 31 May 2016, identified the error and refunded the appropriate amount. The email said there was an outstanding liability for charges of £1,327.47 for the period 6 June to 28 November 2018. The Council could not write off these charges.
  36. At the beginning of June 2017 Ms C submitted a formal complaint to the Council about financial assessment, charging decisions and the conduct of the social worker responsible for Mr B’s core assessment and support plan in December 2015.
  37. The Council issued a complaint response in an email sent on 12 July 2017. The email did not uphold the complaint. Amongst other comments the email said that Mr B had received 7 hours of care per week from provider Y in the period 1 June to 31 November 2016. The Council arranged and funded 3.5 of these hours. The Council required Mr B to make a financial contribution to hours it had arranged and funded. The financial contribution matched the full cost of the service to the Council since Mr B’s ‘maximum weekly assessed contribution’ of £222.59 a week was high. The arrears could not be written off.
  38. Ms D sent an email to the Council on 25 July expressing disagreement with the complaint response.
  39. The Council (operations manager) responded to Ms D in an email sent on 7 August. The email confirmed the findings made in the initial complaint response.
  40. Ms D complained to the Ombudsman.

Analysis

  1. On 26 February 2016 the financial assessor established that Mr B was no longer a ‘self-funder’ since his savings and investments on 11 January 2016 fell below the upper capital threshold of £22,250. Mr B was now entitled to an arrangement involving the Council taking responsibility for arranging and paying for the service with Mr B making a financial contribution. The financial assessor established that Mr B’s maximum weekly contribution was £219.24. The financial assessor was aware that Mr B was commissioning a substantial care package as identified in the December 2015 Care and Support Plan from provider Y. The evidence suggests that Mr B wanted the Council to take over responsibility for arranging the services delivered by provider Y. From early March 2016 the Council should have taken responsibility for all elements of Mr B’s care package, commissioned services on his behalf and invoiced him for a financial contribution to a maximum of £219.24 backdated to 11 January 2016. Instead the Council postponed taking over the package of care from provider Y for several months and the eventual decision to accept responsibility for arranging and funding a home based care package (3.5 hours a week) by provider Y was communicated very poorly.
  2. In August 2016 the Council refunded Mr B £1,159.27 in relation to provision of care assistants by provider Y and a personal alarm service for the period 11 January 2016 to 31 May 2016. The Council should be responsible for the actual cost borne by Mr B for the period 11 January 2016 to 31 May 2016 (around £6,200) minus a financial contribution. Assuming a financial contribution on Mr B’s part of £4,387.60 (20 weeks x £219.38), this means that the refund should have amounted to £1,812.40 as opposed to £1,159.27. I therefore recommend that the Council refunds Mr B a further £653.13.
  3. A social worker completed a Care and Support Plan for Mr B on 27 April 2016. The plan was contradictory and confusing. It was unclear as to the Council’s role in arranging services for Mr B. The plan failed to establish who was responsible for arranging what. The plan did not quantify a Personal Budget. The plan referred to both Mr B and the Council managing the personal budget. The ‘information and advice’ section of the plan on page 8 referred to Mr and Mrs B ‘self-funding a homecare package of x 4 daily calls to assist with personal care tasks and transfers’. Page 6 of the Plan referred to Mr B requiring ‘a homecare package of x 1 call per day’ to support with personal care tasks. No information was provided in the section of the form identifying the service user’s financial contribution. The plan was unsigned - the social worker responsible for the plan was not identified.
  4. In its response to Ombudsman enquiries the Council refers to a Core Assessment document of 25 April 2016 on which the Care and Support Plan of 27 April 2016 was based. I have seen no evidence that a Core Assessment was produced in April 2016.
  5. The Care and Support Plan of April 2016 was inadequate and indicates that a proper reassessment of Mr B’s needs had not been carried out. To remedy avoidable distress to Mr B caused by an inadequate assessment and support plan I recommend that the Council writes off the arrears of £1,327.47 which it considers Mr B liable for.

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Agreed action

  1. From early March 2016 the Council should have taken responsibility for all elements of Mr B’s care package, commissioned services on his behalf and invoiced him for a financial contribution to a maximum of £219.24 backdated to 11 January 2016. Instead the Council postponed acknowledging responsibility for several months. Further there is no evidence that the Council carried out a proper assessment and planning process in April 2016 to decide Mr B’s eligible needs and how the Council could meet those needs.
  2. To remedy fault causing Mr B injustice the Council will carry out the following action:
  • Apologise to Mr B in writing
  • Refund Mr B a further £653.13.
  • Write off Mr B’s outstanding arrears of £1,327.47
  1. The financial assessor on 26 February 2016 calculated Mr B’s weekly state pension income as one of a joint couple as £250.48 which appears excessive. The Council will review this calculation.
  2. The Council should take the above action within two months of the date of my final decision.

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Final decision

  1. The agreed action suitably remedies the injustice to Mr B. I have therefore discontinued my investigation and closed the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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