North Somerset Council (17 016 169)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 23 Jul 2018

The Ombudsman's final decision:

Summary: Mr X has complained, on behalf of his son, about the Council’s decision to charge his son for day care whilst his son was living with him. He has also complained about delay in finding an alternative placement and a lack of support for himself as a carer. The Council is at fault. It has agreed to pay Mr X £1,000 for the injustice caused by the failure to consider and provide support to him. It has agreed to carry out a financial assessment and check the day care charges are correct.

The complaint

  1. Mr X complains, on behalf of his son, Mr Y, about the Council’s decision to charge for care provided at a day centre Mr Y attended whilst he was living with Mr X between 7 June and 30 October 2016. Mr X has power of attorney for Mr Y and manages his financial affairs. He says the Council did not inform him about these charges in advance.
  2. Mr X also complains, on his own account, that the Council did not offer him any support when his son was living with him and did not keep him informed about the steps it was taking to find an alternative placement for his son.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I spoke to Mr X about the complaint and considered the information he provided.
  2. I considered the Council’s replies to my enquiries.
  3. I have considered the Care and Support Statutory Guidance (June 2014) and our guidance on remedies.
  4. I gave the Council and Mr X the opportunity to comment on my draft decision. I have considered their comments before making a final decision.

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What I found

  1. Councils charge for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14 )
  2. Councils must assess a person’s finances to decide what contribution he should pay towards their care and support. 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 has, the council should take that into account when assessing his finances. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)

Carer’s Assessment

  1. Where an individual provides or intends to provide care for another adult and it appears the carer may have any needs for support, councils must carry out a carer’s assessment. Carer’s assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
  2. Where the council is carrying out a carer’s assessment, it must include in its assessment a consideration of the carer’s potential future needs for support. Factored into this must be a consideration of whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)

Refusal of assessment

  1. A carer may refuse to have an assessment and in these circumstances the council does not have to carry out an assessment.

Carer’s Budgets and Respite

  1. The Care Act 2014 says councils may meet the carer’s needs by providing a service directly to the adult needing care. In these cases, the carer must still receive a support plan which covers their needs, and explain how the Council will meet them. The carer’s personal budget must be an amount that enables the carer to meet their needs to continue to fulfil their caring role. It must also consider what the carer wishes to achieve in their day to day life. Part of the planning process should be to agree the manner in which the carer will use the personal budget to meet his or her needs. (Care and Support Statutory Guidance 2014)

Personal Budgets

  1. Councils meeting someone’s care and support needs must provide them with a personal budget in their care and support plan. The personal budget should give the person clear information about how they should use the allocated money to meet their identified needs. The council should share an indicative budget with the person, and anybody supporting them, at the start of care and support planning. It should confirm the final amount of the personal budget through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be an amount enough to meet the person’s care and support needs.
  2. There are three main ways in which a personal budget can be administered:
  • As a managed account held by the local authority with support provided in line with the person’s wishes;
  • As a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes;
  • As a direct payment. (Care and Support Statutory Guidance 2014)

Direct payments

  1. Direct payments are monetary payments made to individuals to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs. The council has a key role in ensuring that people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.
  2. Councils must tell the person during the care planning stage which of their needs direct payments could meet. However, local authorities must consider requests for direct payments made at any time, and have clear and swift procedures in place to respond to them.
  3. After considering the suitability of the person requesting direct payments against the conditions in the Care Act 2014, the council must decide whether to provide a direct payment. In all cases, the council should consider the request in as quickly as possible. The council must provide interim arrangements to meet care and support needs to cover the period in question. Where accepted, the council should record the decision in the care or support plan. Where refused, the council should provide the person making the request with written reasons to explain its decision. It should also tell the person how to appeal against the decision through the local complaints procedure. (Care and Support Statutory Guidance 2014)

What happened

  1. Mr Y has learning difficulties. His placement broke down in early June 2016 and he went to live with his father, Mr X, whilst the Council found a suitable alternative place for him. All parties expected this would be a very short-term arrangement but he ultimately lived with his father for 21 weeks. He moved to a residential placement in late October 2016.

Finding an alternative placement for Mr Y

  1. Council records show it was proactive about finding an alternative placement for Mr Y. It involved Mr X in discussions about what would be a suitable placement. Mr X was able to visit some of the proposed placements. Some possible homes were not considered because of their location. Some possible homes did not have any availability.
  2. The Council identified a possible home on 12 August 2016 and Mr X was informed. Mr X visited the residential home, Home 1, which was near where his daughter lived. He advised the Council he liked it but wanted to compare it with other possible homes in the area. A further home was identified, which Mr X decided was not suitable for Mr Y.
  3. Home 1 assessed Mr Y and sent the Council initial costings on 6 September 2016. Funding was agreed on 3 October 2016 and the Council told Mr X about this the same day. On 6 October 2016, the Council agreed with Home 1 that Mr Y would move there on 31 October and told Mr X about this on 7 October. Mr X and his daughter assisted Mr Y with the move on 31 October.

Mr Y’s contribution to his care costs

  1. Mr Y had been attending a day care centre every day (Monday to Friday) whilst at his previous placement. It was decided he should continue to attend whilst he was living with Mr X. Initially Mr X took Mr Y to the day care centre and brought him home again at the end of the session. The social worker made an application for funding for transport to take Mr Y to and from the day care centre. The Council agreed to fund this and Mr Y was not asked to contribute to the cost of the transport.
  2. Whilst he was in residential care in his previous placement, Mr Y contributed to its cost but was not asked to contribute to the cost of the day centre provision. There was then a 6-week period in a shared lives placement where Mr Y was not asked to contribute to his care. This placement broke down and Mr Y went to live with Mr X.
  3. The Council asked Mr Y to contribute £78.18 per week towards the cost of the day centre care whilst he lived with Mr X. It initially issued three separate invoices for the period but later decided the amount of the contribution was incorrect. It cancelled these invoices and reissued one invoice for £1,485.42 on 30 November 2016.
  4. Mr X is disputing this invoice because he says the Council did not tell him Mr Y would need to contribute towards the costs. Mr X accepts he would probably not have stopped the day care sessions because Mr Y was benefitting from them. However, he was not expecting to receive a bill. Mr X thinks it was inappropriate for the Council to issue a bill when it was saving money on the cost of residential care whilst Mr Y lived with him.
  5. The Council says it relied on a financial assessment completed in January 2014. At this point Mrs X was dealing with Mr Y’s financial affairs but she has since died. The Council says it is “unable to provide evidence to show what information was given to [Mr X] regarding paying for care whilst [Mr Y] was living with him”.
  6. Mr X says the Council has asked him to complete a form setting out Mr Y’s income and capital each year. However, given the significant change in circumstances when Mr Y went to live with him, he thinks the Council should have carried out a full financial assessment.

Carer’s assessment

  1. The Council says it offered to carry out a carer’s assessment for Mr X. It says the social worker’s recollection is that Mr X refused this. Mr X says a carer’s assessment was mentioned but not followed up. Mr X says he was asked about a carer’s assessment when he made a formal complaint after Mr Y had moved to a residential placement. It is not clear what the Council thought would be achieved by carrying out an assessment at that point.

Support for Mr X

  1. Council records show Mr Y’s social worker was concerned about the impact on Mr X of caring for his son. The records show Mr X had some health issues of his own and was bereaved, having recently lost his wife.
  2. The assessment carried out when the Council was deciding funding for transport in June 2016 states: “It would be important to ensure that [Mr X] is well supported whilst [Mr Y] is living back at home to ensure that this is sustainable until alternative accommodation is available”. It further states that Mr Y living with Mr X “is not an ideal situation and there are concerns of the impact upon his father in caring for [Mr Y]”. It also mentions some health issues Mr X has.
  3. The handover notes when the social worker changed in July 2016 state: “[Mr X] will need support as well as [Mr Y]” and also suggests Mr X may need bereavement support.
  4. The Council says Mr X was not offered direct payments to obtain support for his caring role because it would have taken time to set up and the additional paperwork would have been an extra burden for Mr X. It has not indicated that any direct services were offered. It also says it was not clear that Mr X incurred other costs because Mr Y had benefits to cover his daily living costs.
  5. Mr X says no support was offered. He says the Council did offer to carry out a carer’s assessment but did not follow through with this. He says he did not pursue it because he had been told any support would be means-tested and he thought he would not qualify. The Council said, in response to my enquiries, that it does not charge for support for carers.
  6. Mr X says he felt he had to offer accommodation to Mr Y because he is his son and he had nowhere else to go. Mr X says caring for his son for 21 weeks had a significant impact on him. He says he had to pay all the costs of Mr Y’s care, such as food, toiletries and additional utility costs, such as extra electricity used.
  7. Mr X was responsible for Mr Y 24 hours a day as he had to be “on call” even when Mr Y was at the day care centre. He says this felt like a big responsibility, particularly given he is getting older and had no-one to share the day-to-day burden with. Although Mr Y did attend the day care centre he was home soon after 4 pm and was with Mr X all weekend.
  8. Mr X says that his wife had died only a year before and he was still dealing with this bereavement. This also affected Mr Y, whose demeanour and behaviour was more difficult at that time because of his own feelings of loss for his mother. Mr X says Mr Y was offered bereavement counselling but this was not delivered.
  9. Mr X has explained that he had to wake Mr Y up in the morning, help him with showering, dressing and shaving, prepare his breakfast and make sure that he was ready for the taxi to the day care centre. Mr X says his son is difficult to deal with first thing in the morning and cannot be hurried so getting him ready for a specific time was not easy. Mr X had to prepare all the meals, do all the clearing up and extra cleaning, and do all Mr Y’s laundry.
  10. Mr X says his social life came to a halt because he was on call during the day and could not go out when Mr Y was at home unless he could arrange for someone to sit with Mr Y. He says he was able to go out on 2 or 3 occasions only during this period, when his daughter came over to sit with Mr Y. His daughter lives some distance away and had to make arrangements for someone to care for her own children so this was not easy for her either.
  11. Mr X says the physical and emotional strain of caring for Mr Y had an adverse impact on his health. As a consequence, he had to take increased medication over this period and also had to postpone an operation because there was no-one else to care for his son. He says he lost about a stone in weight over this 21 week period. He was also suffering from severe hay fever symptoms during that period.

My findings

Finding an alternative placement for Mr Y

  1. Council records show it was generally active in finding an alternative placement and involved Mr X throughout most of the process. However, there is no record of it taking any steps to find a new placement during July 2016. There was a change of social worker in July. Given the Council knew about the pressure on Mr X and had accepted the placement was not ideal, this period of inactivity is fault. This fault probably delayed the finding of an alternative placement for Mr Y and caused injustice to Mr X because he had to care for his son for longer as a result.
  2. Once it identified a placement, the Council approved the funding for it without delay.

Mr Y’s contribution to his care costs

  1. The Council was entitled to ask Mr Y for a contribution towards the cost of his care. It should have carried out a financial assessment to determine the appropriate amount of the contribution. It should have involved Mr X in the financial assessment as he manages Mr Y’s money.
  2. Financial assessments should be reviewed as financial circumstances change and at least annually. The Council has not carried out a financial assessment of Mr Y since January 2014. This is fault. This fault means Mr X cannot be sure that the amount his son has to pay is correct. This is particularly important here because the allowances for people in residential care are different from those living in their own, or a relative’s home.
  3. The Council did not explain to Mr X that Mr Y would need to contribute to the cost of the day care centre nor discuss the amounts with him. This is fault. This fault meant Mr X was not expecting a bill and he spent time and effort getting the Council to explain why it has made a charge and what it has charged for.

Carer’s assessment and support for Mr X

  1. There is a dispute about whether the Council offered Mr X a carer’s assessment and, if it did, whether this was either refused or not followed up. I would expect the Council to record whether and when it offered an assessment. If Mr X refused an assessment I would expect the council to have recorded this decision and any reasons given. The Council has no evidence of such a decision. This lack of record-keeping is fault.
  2. Council records show it knew Mr X would need support to continue to care for his son. Mr X says the Council told him any support would be means-tested and he assumed this meant he would not be eligible. The Council does not charge for support for carers. It is therefore likely the Council did not give Mr X adequate information about carers assessments for him to make an informed choice. It probably did not offer him an assessment. This is fault.
  3. This fault meant Mr X was unable to make an informed decision about whether he was able to care for his son. It also meant he struggled to care for his son for 20 weeks without support (excluding the first week where it was planned Mr Y would live with Mr X whilst his carers were on holiday).
  4. During this time Mr X bore all the costs associated with caring for Mr Y. The Council has said Mr Y should have been able to contribute towards these costs. Mr X has explained that after Mr Y had made contributions towards his care and support there was only a modest sum left over, which Mr X needed to pay for clothes and personal items.
  5. Mr X became a full-time carer for his son, which took over his life for that period and probably had an adverse impact on his health. It was made more difficult because he had lost his wife (and Mr Y had lost his mother) only a year before. This meant Mr X was less able to cope with the circumstances caused by the Council’s failure to offer and provide him with support.

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Agreed action

  1. The Council will, within one month of the date of the final decision:
    • Apologise to Mr X for the failure to give him information about Mr Y’s contribution to the cost of the day care centre and its failure to offer support to Mr X in his caring role whilst Mr Y lived with him.
    • Pay Mr X £1,000 for the avoidable distress caused to Mr X because of the Council’s failure to consider what support Mr X might need whilst he was caring for his son and provide that support.
  2. The Council will, within three months of the date of the final decision:
    • Provide training to front-line staff to ensure they are aware of the importance of following up carer’s assessments and ensuring that support is provided to carers.
    • Remind front-line staff of the importance of keeping full and proper records, particularly where a carer refuses a carer’s assessment.
    • Review its processes to ensure that financial assessments are reviewed when financial circumstances change and in any event annually in accordance with the Care Act 2014.
    • Carry out a financial assessment for Mr Y for the period he lived with Mr X and check the charges for day care are correct. The Council should provide the Ombudsman and Mr X with a copy of the financial assessment and its calculations. If the charges for the day care are not correct the Council will issue a revised invoice.

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Final decision

  1. I have completed my investigation. I have found fault leading to personal injustice. The Council has agreed action to remedy that injustice and prevent reoccurrence of this fault.

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Investigator's decision on behalf of the Ombudsman

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