The Ombudsman's final decision:
Summary: Mr B complains about the Council’s handling of an increase to his care charges. The Council did not tell Mr B about the increase promptly or clearly. Also, the Council sent Mr B letters which did not apply to his situation and caused further confusion. The Council has agreed to make a payment to Mr B and reduce the debt he owes. This puts right the injustice he suffered. So, we have ended our investigation.
- Mr B complains that the Council wrongly decided to increase his care charges. Mr B does not consider he should have to pay the increased charges and says the Council delayed telling him about the increase. Mr B also complains that the Council’s complaints and finance departments have not been consistent about whether he should be paying the charge while his complaint is being investigated. Mr B complains that the Council has asked him to pay back £921 despite previously telling him he does not owe anything.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I have discussed the complaint with Mr B and have considered information provided by the Council in response to my enquiries. I have considered information provided by the Council in response to our investigation into a complaint about similar matters. This information includes the Council’s Charging Policy following the implementation of the Care Act 2014. I have also considered the comments of Mr B and the Council in response to my two draft decision statements.
What I found
- The Care Act 2014 came into force in April 2015. It provides a single legal framework for charging for care and support and replaces all other legislation, guidance and regulations in relation to charging and financial assessment.
- Section 14 of the Act explains the power of the local authority to charge for the cost of care. Section 17 explains the duty to undertake an assessment of financial resources.
- The Council’s Charging policy says it provides a phase-in period to limit the impact of the change in policy. It says:
A phase-in period of three (3) years will be applied to limit the financial impact to individuals from the date that this policy is implemented (referred to as the ‘implementation date’).
Subject always to paragraphs 20.3 to 20.6, for the first year of the phase-in period (or any part thereof) the adult will contribute no more than £40 extra per week (plus inflation***** (if any) on their ongoing community based care and support services) compared to the amount of their contribution on the implementation date (or until the full contribution is reached).
For the second and third years (as applicable) (or any part thereof) an adult will contribute, up to, a further £40 extra per week (plus inflation***** (if any) on their ongoing community based care and support services) compared to the previous year (or until the full contribution is reached).
- During recent years Mr B has been receiving a care package from the Council. Until recently Mr B received four visits by carers each day. Mr B’s care package cost £190.73 per week. Mr B contributed £110.39 towards this cost.
- On 1 December 2016 Mr B’s Borough Council wrote to him on behalf of the County Council regarding the annual review of his care charges which was due. The officer said a new financial assessment was needed and asked Mr B to complete and return a questionnaire. On 9 December the officer visited Mr B to undertake the financial assessment. The officer’s summary of the financial assessment said Mr B’s contribution towards the weekly care cost of £190.73 was now £181.82 starting from 11 December. The officer noted that this was ‘subject to mitigation rules’. Mr B says the officer did not provide him with a copy of the completed financial assessment summary. Despite the new assessment, the Council continued to charge Mr B £110.39 per week.
- On 20 December the Council sent a letter to Mr B. The Council says this letter was sent to 361 households where couples financial assessments had been undertaken on or after 4 July 2016. The Council said it had discovered that some of the assessments carried out during this period were incorrect because the officer who undertook the assessments was given wrong instructions by the Council.
- The Council apologised and said it would arrange for the Borough Council to undertake a repeat financial assessment in order to check Mr B’s contribution is correct. The Council outlined the three possible outcomes that would result from the new financial assessment.
- The Council then wrote to Mr B on 6 March 2017. The Council said the Borough Council had now carried out a recalculation of Mr B’s care charges. The Council said Mr B’s care charge as of 11 December 2016 are £181.82. This was the same amount as the December 2016 financial assessment. The Council said this means Mr B has underpaid his care charges from 11 December 2016 and the arrears will be included in his next bill. The Council invited Mr B to contact the Council if he wanted information about a repayment plan or to know more about how the recalculation was worked out.
- Mr B contacted the Council in response to this letter on 10 March. Mr B said he was told that he would receive a further letter within 7 days of the December 2016 assessment, but he did not hear anything. Mr B also queried whether the Council’s mitigation arrangements had been applied to his charges. Mr B asked why it had taken the Council so long to notify him of the new charge and said the new charge should start from 6 March as this was when he was notified of the charge.
- On 14 March a Council Financial Services Manager phoned Mr B. During the call the Manager explained that mitigation did apply to the financial assessment. The Council wrote to Mr B the following day saying his charge will now be £150.39 with a start date of 11 December 2016. This was after the Council had applied mitigation of £40 to the original charge of £110.39. The Council added that the account will be corrected for the period of 11 December 2016 to 4 March 2017.
- In response to the increase in his care charges from £110.39 to £150.39, Mr B reduced the number of carer visits as part of his care package.
- The Council then wrote to Mr B to say this had reduced his weekly charge to £108.99. The Council also said that the revised amount Mr B owed for the period when he underpaid his charges was £921.56.
- On 3 April 2017 the Council sent a letter to all people who had previously expressed concerns about the Council’s handling of financial assessments of couples. This letter was sent to Mr B. The Council said it had acted unlawfully in the way it applied the Care Act to its financial assessments for couples. The Council said it had no alternative but to recalculate charges for couples and backdate these charges to July 2016. In a follow up letter dated 18 May the Council said it had reviewed this decision and had now decided not to backdate the charges. The Council then wrote to Mr B on 9 June confirming that his weekly charge from 11 December 2016 was £150.39 and his current charge, since his care package was reduced, was £108.89.
- The Council provided a response to Mr B’s specific complaint on 22 May. The Council said:
- It apologised for its delay telling him the outcome of the December 2016 financial assessment and the contributions he would need to make.
- It apologised for taking monies from his bank account after previously giving him assurances that the status quo would remain while the complaint was ongoing.
- It has reviewed its previous decision and will not now require increased charges, that were the result of the couples assessments error, to be backdated. But, the Council will still require the new charge to be paid from the date the financial assessment was undertaken.
- Mr B’s case was different to many of the 361 households where couples financial assessments had been undertaken incorrectly.
- The 9 December 2016 financial assessment was undertaken using the correct Care Act rules and charges were not backdated to any time before this date.
- The general letters sent to households affected by the Council’s error conducting financial assessments for couples should not have been sent to Mr B.
- At the time of the financial assessment Mr B should have been provided with a copy of the financial assessment and billing at the new higher rate should have started shortly after. But, there was no evidence to show he was provided with a copy of the financial assessment.
- Apart from the general letter dated 20 December 2016 there is no evidence that Mr B received any other written confirmation of the assessed charge until he received the letter dated 6 March 2017. Billing started shortly afterwards.
- My view is the Council was at fault for the way it handled Mr B’s financial assessment in December 2016.
- The Council decided Mr B’s contribution to his care costs had increased from £110.39 to £181.82. But, the Council did not tell Mr B about the increase, or charge the increased amount until March 2017. This meant Mr B did not know his contribution had increased and he accrued a care charge debt as a result. Also, the Council did not apply its mitigation policy to Mr B’s financial assessment until this was correctly queried by Mr B in March 2017. This was despite the financial assessment form stating that Mr B’s new weekly charge was subject to mitigation rules. The application of the mitigation policy meant Mr B’s contribution reduced to £150.39.
- Mr B says if the Council had promptly told him about the increase he would have reduced the number of hours of the care package to save money. This is what Mr B did in May 2017 when he found out about the increase. Given Mr B’s actions once he found out about the increase, I can understand why he feels aggrieved that he has been asked to pay the arrears that accrued between December 2016 and March 2017 of £921.56.
- I do not consider it is reasonable for the Council to ask for the full amount to be repaid.
- However, I also recognise that Mr B received care services during this period, which were more than what he would have received if he had reduced his care package. So, to put right the injustice suffered by Mr B, I have asked the Council to reduce the arrears by half for this period from £921 to £460.
- In addition, the Council was at fault for sending Mr B letters dated 3 April 2017 and 18 May 2017. The Council has referred to these letters as general letters which were sent to all households where couples assessments had been undertaken incorrectly. These letters were not relevant to Mr B because when the Council reviewed his financial assessment in March 2017 it did not result in any changes to his contribution. So, the error regarding how the Council had been conducting financial assessments for couples did not apply to Mr B.
- The Council was also wrong to refer to the couples reassessments when responding to Mr B’s complaint. Given the content of these letters I fully understand why Mr B considered he was not required to pay anything back to the Council.
- Furthermore, the Council has already accepted it was at fault for taking money from Mr B’s account while his complaint was being considered.
- I consider Mr B has suffered a significant injustice as a result of the fault I have identified. This is because Mr B has been caused some distress and confusion about how much he was required to pay towards his care package and also whether he was required to pay any money back to the Council.
- The Council apologised to Mr B for its delay telling him about the increase to his contribution to his care package. This was a suitable response. I have asked the Council to take additional action in the ‘Agreed action’ section below.
- However, I have not seen any information to suggest the Council’s original decision to increase Mr B’s contribution from £110.39 to £150.39 (once mitigation had been applied) was affected by fault. In response to my enquiries the Council has explained why Mr B’s contribution to his care package increased. This was mainly as a result of changes to Mr B’s income.
- To put right the injustice suffered by Mr B as a result of fault by the Council, I recommend that within two months of the date of my final decision, the Council:
- Reduces the care charge arrears that accrued between December 2016 and March 2017 by half from £921 to £460; and,
- Pays Mr B a financial remedy of £150. This is in recognition of the distress and uncertainty Mr B suffered as a result of the fault I have identified in my investigation.
- The Council was at fault and Mr B suffered an injustice as a result. The action the Council has agreed to take puts right the injustice suffered by Mr B. So, I have completed my investigation.
Investigator's decision on behalf of the Ombudsman