Summary: The complainant says the Council failed to issue invoices so she could pay her care costs. The complainant also says the Council did not apply money she paid to the correct accounts. The complaint says this led to a significant debt which the complainant finds difficult to repay. The Council says it issued invoices and reviewed the complainant’s finances according to law and regulations, but the complainant failed to pay enough through standing orders each month to cover her care costs. The Council finally issued a Letter before Action to recover the growing debt. The complainant also complains the Council failed to provide care services when she left hospital or investigate complaints or theft by officers visiting her property. The Council says it provided care within two days and investigated her concerns but without further information it could not reach a decision. The Ombudsman finds the Council acted without fault in allowing the complainant time to repay the debt and investigating her other concerns.

The complaint

1. The complainant whom I shall refer to as Mrs X, complains the Council when managing her home care support failed to:
• Properly apply payments by Mrs X to her community care account leading to errors in the account and leading to increasing debt;
• Provide regular accurate detailed invoices;
• Properly assess Mrs X’s finances and regularly review the assessment;
• Properly investigate complaints of staff rudeness, lack of respect and possible theft;
• Properly consider reducing or writing off the debt because of Mrs X’s concerns.
2. Mrs X says these faults have led to increased anxiety for her. Mrs X and her representative, Mr Y, want the Council to accept fault and offer to write off the debt on the community care account.

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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)
4. If 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

6. In considering this complaint I have:
• Contacted Mrs X’s representative and read the information presented with her complaint;
• Put enquiries to the Council and reviewed its responses;
• Researched relevant law, guidance and policy;
• Shared a draft decision and considered the responses received resulting in this final decision.

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What I found

7. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
8. The Care Act allows councils to recover adult social care debt including debts arising before the Act coming into force in April 2015. (Care Act 2014, section 69)
9. 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)
10. Councils should issue invoices setting out the charges for the care received.
11. In compliance with the Care Act 2014 the Council sends two reminders of a debt. The Council then contacts the debtor by telephone (where possible). After contacting the debtor, the Council sends a pre-legal action letter (known as a Letter before Action) to tell the debtor what will happen if the debtor fails to pay the debt. The Letter before Action allows the debtor 30 days to respond.

What happened

12. For many years Mrs X has received home care support organised by the Council. A debt on the account arose in 2009. By 2012 Mrs X received care support for 11 hours and 45 minutes per week at a charge of £76.12 per week.
13. On 15 August 2013 the Council emailed Mrs X’s representative Mr Y, saying Mrs X’s assessed full month’s contribution stood at £304.12. Mr Y says he did not undertake the role of formal representative, he merely sought to help communications with Mrs X. Mrs X paid £300.00 by standing order each month and therefore, the Council says, her account accrued arrears. The Council said in its email the account now had arrears of £7,467.96.
14. In the email of 15 August 2013, the Council suggested Mr Y or Mrs X contact the Council’s Debt Finance Analyst who offers help in developing a payment plan. The email said a copy of account had been sent to the Debt Finance Analyst so they would be expecting contact.
15. In Mr Y’s email in response he says Mrs X would increase her monthly payment to £305 and when able Mrs X “has made additional lump sum payments to her account” to reduce arrears.
16. In 2014 following a review the Council wrote to Mrs X explaining her contribution to her care costs would be £78.51 per week. The Council says it contacted Mr Y by text message alerting him to the increase in the debt now owed to £8,752.97.
17. The Council contacted Mr Y again in June 2015. Mr Y responded by disputing the historic debt on the account. Mr Y said Mrs X had not received invoices for the care received and so had not paid. In 2015 Mrs X continued to pay £300 per month. This did not cover the full contribution which the Council says added to the debt.
18. The Council wrote by email in September 2014 that it had sent invoices and even without invoices Mr Y and Mrs X knew they had to pay for the services received.
19. In November 2015 the Council offered Mrs X a conditional repayment plan to recover the debt at £100 per month and asked Mr Y to complete an income and expenditure form. Mr Y says he and Mrs X have presented income and expenditure forms many times. Mr Y says the Council refused Mrs X’s offers of affordable repayments which would reduce her debt.
20. The Council followed this up by telephone asking Mr Y to provide evidence of Mrs X’s income and expenditure and the last three month’s bank statements. Mr Y says this is a common theme continually asking for income and expenditure statements.
21. In December 2015 the Council reviewed Mrs X’s care needs. This resulted in an increase in the support to include a lunchtime visit. Mrs X now received 15 hours and 15 minutes support per week an increase on her previous 11 hours 45 minutes.
22. In February 2016 the Council sent a debt recovery letter to Mrs X with an income and expenditure form for completion.
23. During 2016 Mrs X offered to pay £25 per month toward the arrears, less than the £100 the Council says Mrs X had previously offered but not honoured.
24. The review in 2017 led to no change to the support offered to Mrs X. The review in 2018 led to changes increasing the number of calls during the day. The Council assessed Mrs X’s financial contribution resulting in an increase to £79.98 per week and wrote to Mrs X on 14 May 2018 explaining the new charge. Increases in contributions result from changes in the income and expenditure of the person receiving the service. An increase in the service provided does not therefore automatically result in an increase in the contribution charged.
25. In May 2018 the Council wrote to Mrs X with a statement of the account. The Council says the statement shows how the arrears for care charges arose and warned Mrs X the Council may start legal proceedings to recover the debt. The Letter before Action dated 23 May 2018 resulted in Mrs X making a subject access request in June 2018 seeking information about her payments and account. Mr Y says the Council failed to comply with the timescales set for replies to subject access requests. The Letter before Action signposted Mrs X to agencies that may help her manage the debt.
26. In July 2018 the Council wrote to Mrs X saying that since November 2002 the Council had sent monthly care charge invoices to Mrs X at her home address. The Council said Mrs X now owed £9,745.76 in arrears due to “…over eighty counts of payments shortfall…” In other words, because Mrs X did not pay all the invoice in some months, arrears arose. The Council says its officers tried to arrange a payment plan to cover the arrears. However, the Council says Mrs X did not pay the amount promised of £100 per month.
27. To establish what Mrs X should pay the Council says it asked her to complete another Income and Expenditure form. The Council needed to assess Mrs X’s current income and expenditure. The Council says in response Mrs X sent in a form which included payments for a TV licence. Mrs X is entitled to a free tv licence, so the form contained anomalies the Council needed explained. Mr Y says Mrs X’s carer helped her complete the form and made a simple error by including the TV licence.
28. In March 2019 the Council assessed Mrs X’s contribution as £81.88 per week from April 2019.
29. When the Council receives payment of an invoice it will use the unique account reference to allocate the money to the ledger account. Mr Y says the Council failed to correctly record a payment of £399 made in September 2018. The Council says it allocated the payment to Mrs X’s ledger account on 24 September 2018. The transaction record shared with me shows the money received by the Council since 2002. It shows the Council received £399 on 6 September 2018 and having adjusted the account the Council then paid this sum into the account on 24 September 2019. This payment reduced the overall debt now on Mrs X’s account.
30. The Council says occasionally it may send out an invoice without showing payments received. This reflects the timing difference between when the Council produces the invoice and when it posts the payment to the account ledger. It says it has accounted for all payments made.
31. The Council says it is willing to engage with Mrs X and Mr Y to try and agree what to do about the debt and to consider entering mediation to settle the matter.
32. The Council says since 2011 officers have not visited Mrs X to discuss her financial assessment or the social care debt. The only visits by officers are to discuss her care needs and carry out care reviews. Mr Y believes the Council should have offered visits to discuss the mounting debt. The Council believed from contact with Mrs X she did not welcome further visits.

Recovering social care debt

33. The Council says it has issued invoices for social care charges every year. In 2009 there was a period from April to August when invoices could not be sent. However, the Council says once it resolved the technical issues it issued invoices for the services provided from April 2009. The Council says those receiving services knew they would receive invoices and would need to pay for the services provided.
34. The Council uses the procedure recommended in the statutory guidance issued under the Care Act 2014. The Council sent two reminders, telephoned Mrs X and Mr Y and sent a pre-legal action notification letter known as a Letter before Action giving 30 days for a response. The letter sets out several choices for responding including the debtor needs time to pay. The Council says the procedure aims to avoid legal proceedings. However, having sent a Letter before Action on 23 May 2018 the Council says Mrs X responded by making an official complaint and a Subject Access Request under Data Protection legislation. The Council has not taken further action to recover the debt.
35. The Council says Mrs X’s debt accrued because she failed to pay the care costs. Mrs X could have avoided the debt if she had made the full payment of her care costs. Council officers have advised her and given guidance on how to pay. The Council delayed passing the debt to its legal department for legal proceedings until 2018. The Council wanted to avoid issuing proceedings against an elderly lady.

Hospital discharge

36. Mrs X spent time in hospital in 2018. On 24 April 2018 the Council received an out of hours’ notice from the hospital to say Mrs X would be discharged the following day. The Council could not commission a care provider to provide Mrs X’s support on 25 April 2018 because she now had needs that meant an increase in the support she needed. Therefore, it says it sought a new care provider. The Council found the new care provider who offered a service from 27 April 2018. The Council says it could not provider a service more quickly due to the late and out of hours’ notice it received. Mr Y says this left Mrs X in hospital for two days longer than she needed to be delaying her return home causing her distress. Mr Y says he has seen no evidence of the Council trying to expedite Mrs X’s return to her home.

Allegations of theft

37. In July 2018 Mr Y called the Council to say Mrs X believed Council staff attending her home had looked through Mrs X’s personal belongings and may have taken personal items from the house. Mrs X also says staff have been rough with her and not shown her respect. The Council raised a safeguarding concern. The Council says it asked Mr Y and Mrs X to provide more details such as the date of the incidents and in what context had Council officers visited. The Council says usually it is only Mrs X’s social workers that visit her as well as care support staff. The Council says it did not receive further information and without that it could not continue with its investigation or decide what had happened.

Analysis – is there fault leading to injustice?

38. The law says the Ombudsman may not usually consider complaints about events that happened more than twelve months before presentation of a complaint. The law also allows the Ombudsman discretion on looking further back in time. However, where someone could be expected to know about faults and bring a complaint to the Ombudsman earlier, we will not usually exercise discretion. This is because recollections and records from longer ago are less reliable. Therefore, it may be more difficult for us to make a robust evidence-based decision on the complaint.
39. Having considered the limits on our powers to investigate I cannot investigate the issue of lost invoices in 2009. It is too long ago for me to investigate. Mrs X could have brought a complaint shortly after that time if she felt this had hampered her ability to pay for her care.
40. I have exercised the Ombudsman’s discretion to investigate Mrs X’s complaint about more recent concerns. In exercising that discretion, I have considered events from 2013.

Accrual of debt

41. Nobody disputes Mrs X has capacity to deal with her care services. The Council has regularly considered if Mrs X has capacity and decided she has. The Council has also involved Mr Y who has helped Mrs X deal with the Council on issues arising from her care service. Mr Y says he helps with communication and this further supports the view Mrs X has capacity but capacity should be kept under constant review by the staff dealing with Mrs X.
42. The Care Act gives those charged for their care the right to receive invoices showing what their care has cost. The Council says it has sent invoices since 2013.
43. Since 2013 the Council has reviewed Mrs X’s care needs and made changes as necessary to her care support. It has reviewed her financial assessment. To review Mrs X’s contributions the Council asks for and needs a statement of her current income and expenditure. This may be inconvenience to Mrs X but the Council must check it has all up to date financial information when reviewing her finances. The Council regularly reviews Mrs X’s capacity to decide what care she wishes to receive.
44. By August 2013 Mrs X had a debt of over £7,000 on her care account. That is a significant debt for Mrs X to have incurred. The Council recommended she talk to its debt analyst and seek help in developing a repayment plan to reduce the debt. This shows the Council’s concern in 2013 at the size and continuing growth of the debt on the account.
45. Little changed in the period 2013 to 2015 when the Council proposed a repayment plan of £100 a month to clear the continually growing debt. When that failed the Council issued a debt recovery letter in February 2016 effectively starting the Care Act procedure for sending reminders and finally a Letter before Action.
46. The Council’s concern about the size of the debt led it to issue a Letter before Action in July 2018. The Council is reluctant to issue court proceedings against a vulnerable elderly person and therefore allowed Mrs X time and opportunities to pay her full care costs as set out in invoices. Mrs X knows how much she is expected to pay but regularly pays less. Having issued a Letter before Action the Council could start court proceedings. The Council has offered mediation as an alternative. Mrs X still has time to arrange a repayment plan to reduce the debt. While the delay in issuing court proceedings has seen Mrs X's debt grow the Council believes she has capacity and knows from the letters sent to her what she needs to pay. Mrs X knows that if this debt is not paid the Council can seek a court order. It has tried to avoid that so far believing it not to be a proportionate response. The Council has offered to enter mediation to resolve the disputed debt. That is a more informal less stressful way of resolving the dispute without attending court.
47. I find the Council acted without fault in deciding it is not a proportionate response to the debt to move quickly to court proceedings to recover the debt. This has prevented Mrs X experiencing the stress and anxiety court proceedings may cause.
48. Whether Mrs X owes the debt is a matter on which only the court can give a definitive decision. However, Mrs X received care from 2013 (and previously) and owes money for her contribution for that care. Mrs X knows she must pay a contribution and has paid a standing order and some extra lump sums.
49. Mr Y says the Council has not always allocated monies to the right account. Mr Y highlighted a payment of £399 made in September 2018 which the Council has shown in its transaction account receipt of the money and the reduction in the overall debt now owed. I find no fault in the allocation of the money.

Discharge from hospital

50. In April 2018 Mrs X wanted to return home as soon as she could following her stay in hospital. The Council could not commission the necessary support on the proposed day of discharge. It arranged it for two days later. That is two days longer in hospital than Mrs X needed and clearly caused her distress. However, the Council had little notice from the hospital about the plan to discharge Mrs X and so I find no fault in its commissioning of the care.

Allegations of theft and inappropriate behaviour

51. Carers and council staff entering someone’s home have a uniquely privileged position. The occupant must have faith and trust in those entering their home and the highest standards of behaviour may be expected. Mrs X says she found officers rummaging through her personal belongings. Mrs X feared a theft had occurred. Mrs X says care staff treated her roughly showing little respect.
52. Theft is a criminal activity and should be reported to the Police who can consider what further action to take. The Council investigated the concerns but without more detail in the allegations it could not complete that investigation. I cannot say what happened, however, it is clear Council commissioned staff caused Mrs X concern. That should be investigated. The Council investigated as far as it could. Without further information from Mrs X it could not reach a decision on the allegations. I cannot say what happened I can only consider if the Council properly sought to investigate the allegations. I find the Council acted without fault in investigating the allegations

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Final decision

53. In completing my investigation, I find the Council acted without fault in its handling of the debt owed by Mrs X for her social care costs; in arranging care on her discharge from hospital and in investigating claims of inappropriate behaviour by staff.

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Investigator's decision on behalf of the Ombudsman