Summary: The Council continued to provide services to Mrs X even though a substantial debt accrued, as she had eligible assessed needs and some payments were made towards the total debt. Mrs X has not suffered any injustice as a result of the Council’s actions.

The complaint

1. Mr A (as I shall call the complainant) complains that the Council delayed in reminding his family about the longstanding debt owed for domiciliary care charges for his elderly mother Mrs X.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
3. 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

4. I considered the written information provided by Mr A and by the Council. Both parties had an opportunity to comment on an earlier draft of this statement and I took their comments into account before I reached a final decision.
    

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What I found

5. 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)
6. 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)

A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:

• because he or she makes an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt.

7. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA),” which replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.

What happened - background

8. Mrs X, whose son Mr A acted informally to support her in her financial affairs, was discharged home to Mr A’s house from hospital in 2010 and began to receive homecare services then. The Council’s records show that she received care free of charge for the first six weeks. After a financial assessment the Council wrote to her in January 2011 informing her she would have a client contribution of £68.30 to pay with effect from November 2010.
9. The Council continued to provide services and to write to Mrs X on an annual basis about her assessed contribution. The Council’s records show that finance officers discussed the growing debt with Mr A in May 2013 and wrote again reminding of the debt in December 2013.
10. In 2014 Mrs X’s pension credit entitlement was reduced and her client contribution was reassessed at £9.33 as a result. On the basis of information she submitted the Council also allowed some disability-related expenses.
11. The Council says there were small sporadic payments towards the growing debt.

The debt recovery attempts

12. In July 2017 the Council wrote to Mrs X to say the debt (now £12,922) must be paid. Mr A contacted the Council to ask how the assessment could be challenged. Mr A did not submit the documents which the Council said it needed to see to reassess the charges. Mr A then challenged the basis for the initial (2010 – 2014) charges as he was unclear why the charge had dropped in 2014. The Council explained the contribution was reassessed in line with the reduction in pension credit.
13. Mr A asked his MP to complain to the Council on his behalf.
14. The social work case recording notes the concerns about Mrs X’s capacity to make her own decisions about her finances. In January 2018 the social worker spoke to Mr A. She recorded,”(Mr A) advised that (Mrs X) has dementia which I advised was not recorded or mentioned at the time of review. As such, his mother is not involved with matters of organizing her finances as she wouldn't have the ability to do all of this”.

15. The social worker also noted, “(Mrs X) is in arrears of more than £12,000 for her client contribution. Her son hasbeen managing her finances an informal capacity, but has not been making regular payments to clear this debt. (Team leader) advised that they will be taking legal action to claim back these funds. However, we will need to ascertain whether (Mrs X) has an understanding of the matter and mental capacity to manage her financial affairs. Feedback is required before Debt Recovery Team can make a plan for next course of action.

I agreed to schedule a home visit to meet with (Mrs X) and her son. SW to book an independent interpreter as I would like to meet with (Mrs X) at some point on her own.”

The complaint

16. In March 2018 Mr A wrote to the Council complaining about its response to his MP and about the way in which the Council had delayed before asking for the care charge debt to be paid. He said he looked after his mother full time and the Council did not take that into account when it asked him to respond by particular dates. He said his mother had lived with him since 2010 and the Council had not taken into account the amount of money they had saved the Council as a result. He said the first he knew of the debt was in 2017.
17. It was not until July 2018, because Mrs X was ill, that the social worker was able to arrange a visit to assess Mrs X’s mental capacity to make her own decisions about her finances. Both Mrs X’s sons were present as well as an independent interpreter. The social worker noted, “Based on my assessment, (Mrs X) does not have mental capacity to manage her financial affairs. Although she appears to have insight about the informal arrangements in place to manage her money, she does not appear to have an understanding of what would be involved in managing her day to day finances. Moreover, she was unable to retain information pertaining to discussions about her finances.”
18. The social worker explained to Mrs X’s sons that Mrs X wanted them to continue to support her informally with respect to her finances but the Council needed to be sure the family was acting in Mrs X’s best interests before it considered an appointeeship for Mrs X’s affairs: she mentioned the outstanding debt. Mr A and his brother said they had started to make regular payments towards the current client contribution, but they queried the basis of some charges.
19. In August 2018 the Council wrote again to Mrs X with the outcome of the investigation into the complaint Mr A made on her behalf. It wrote directly to her as no LPA was in place. It said it had written to her every year advising of her financial contribution. It had also sent monthly invoices. It said it had checked to ensure they were all correctly addressed and posted. The Council also explained why the contributions had decreased in 2014.
20. In response to the complaint that the debt had been allowed to accrue over a long period, the Council said its records showed it had reminded her regularly of the debt and had spoken to Mr A several times. It had also received some payments during that time and the debt recovery team therefore hoped to resolve the matter informally. It said it could not just withdraw the service which was assessed as necessary to meet her needs.
21. The Council noted that most of the debt had accrued between 2010 and 2014. It noted her argument that she had been overpaid by the Department of Work and Pensions (DWP) during that time but said as the DWP had decided not to recover that overpayment there was no reasons to reduce her assessed contribution. It also said she had not provided evidence of disability-related expenditure during the 2010 – 2014 period.
22. Mr A complained to the Ombudsman. He said his mother speaks little English but the Council continued to correspond with her. He said the first he knew of the large debt was the Council’s letter in 2017.
23. The Council says it has sought to reach an agreement over the years with Mrs X and her family to repay the outstanding debt while also providing her with the care service she needed. It says however it also had a duty to recover the money for the public purse. It says it is willing to review the amount if Mrs C can provide detailed evidence that the Council has based its calculations on incorrect information.
24. In responses to the draft decision statement, Mr A’s MP and an advice bureau acting on his behalf have raised concerned about the financial assessment in 2010, the reduction of Mrs X’s pension credit entitlement in 2014 and the delay in assessing her capacity (together with the Council’s continued correspondence with Mrs X).
25. As indicated in paragraph 3 above, we cannot investigate late complaints unless we decide there are good reasons. Mr A complained to us in October 2018, very much more than twelve months after the events about which he now complains. We decided to consider the events from 2017 onwards when the Council wrote to say the debt must be paid.
26. The Council was unaware of Mrs X’s dementia until January 2018 when Mr A told the social worker. After that it arranged a capacity assessment.

Analysis

27. The Council assessed Mrs X’s eligible needs and has provided a service to meet them. There is no fault on its part there.
28. The Council reminded Mrs X regularly of the financial contribution she should make and the debt she had incurred. There was sporadic contact over the years with members of her family and small payments made towards the debt which led the Council to consider the situation could be rectified informally.
29. Once it became clear the debt was no longer being paid, and had reached a significant level, the Council had a duty to recover the money for the public purse. Mr A says the notification that the debt should be repaid was a shock but there is no reason why that should have been so, given the many previous contacts and the payments previously made.
30. No-one held a Power of Attorney for Mrs X and she wanted her sons to support her informally. The Council addressed its letters to Mrs X but also spoke to Mr A who handled her affairs. There was regular contact with the social worker who reviewed Mrs X’s needs. So I do not consider any injustice was caused to Mrs X.

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Final decision

31. Mrs X has not suffered injustice in consequence of the Council’s actions.

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Investigator's decision on behalf of the Ombudsman