Summary: Ms X complained about the Council’s assessment of her relative, Ms Y’s, financial contribution to her care costs. She also said the Council had sent Ms Y a bill for historic care costs which it had previously withdrawn, and about poor complaint handling. There was no fault in how the Council calculated Ms Y’s assessed contribution. There was fault in its invoicing and communication, which caused
Ms Y uncertainty for 12 months about what she had to pay. The backdated invoice sent after the Council identified the fault has caused Ms Y financial hardship and distress. There was also fault in its complaint handling. The Council should write off the historic debt between April 2017 and March 2018 and review its complaint and invoicing procedures.

The complaint

1. Ms X complained the Council’s assessment of her relative’s, Ms Y’s, financial contribution to her care costs was incorrect and unfair. She says the assessment was not holistic and Ms Y cannot afford the contribution. She also complained the Council sent Ms Y a bill for historic care costs and the Council is now pursuing this debt, even though it had previously withdrawn the debt. The matter is causing Ms Y financial hardship and distress. She also complained about poor complaint handling. She wanted the Council to write off the debt and complete a fairer and more holistic assessment of Ms Y’s required contribution to her care costs.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
4. 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

5. I read Ms X’s complaint and spoke with her about it on the phone.
6. I made enquiries of the Council and considered the information it sent me.
7. I gave Ms X and the Council the opportunity to comment on a draft of this decision. I have considered the comments received before making this final decision.

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What I found

Legal and administrative background

Charging for care

8. 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)
9. If a council decides to charge, it must assess a person’s finances to decide what contribution he or she should make to the cost of their care. It must give a written record of this assessment to the person. This should explain how the assessment has been carried out, what the charge will be, and how often it will be made.
10. The Care and Support Statutory Guidance (the Guidance) provides detailed guidance for councils on how to conduct the financial assessment. The assessment should take into account a person’s capital (e.g. savings, property) and income.

Disability Related Expenditure

11. If a person incurs expenses directly related to any disability he or she has, the Council should take that into account as part of the financial assessment. This is called Disability Related Expenditure (DRE). The Guidance sets out a list of disability related costs councils should include.
12. Examples of these are:
• payment for a community alarm system
• special clothing or footwear (or extra wear and tear)
• additional bedding
• extra heating costs
• internet access e.g. for blind or partially sighted people
• any care that social services do not meet
• buying and maintaining disability-related equipment
• any transport costs (both for essential visits to the doctor or hospital, but also to keep up social contacts).
13. The Guidance also gives councils discretion to disallow certain items, where a reasonable alternative is available at lesser cost.
14. Essex County Council has practice guidance to support its assessment of DRE. This sets out what officers should and should not normally accept. The list of items it would not normally accept includes physiotherapy, hydrotherapy or other alternative therapies, as the Council considers these should be provided by the NHS.

Complaint handling

15. Statutory regulations say councils must make arrangements to support the effective handling of complaints. The regulations give broad guidance on what this should include but it is for individual councils to put in place their own local arrangements.
16. The Council has a Complaints Policy which sets out how it will consider complaints including those relating to Adult Social Care. The Policy says it will:
• acknowledge a complaint, usually within 3 working days;
• tell the complainant how long it thinks it will take to look at the complaint and when a response is likely to be sent;
• provide a detailed response which will include a complaint summary, description of the complaint investigation and summary of its conclusions or findings; and
• if appropriate, include any apology, remedy, explanation, outcome or planned action.

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What happened

17. Ms Y lives in her own home. She has a long-term health condition and is supported by home carers. She has had home carers for several years and the care is arranged by the Council.
18. In 2016, Ms Y received home care but did not pay any charges. In Autumn 2016, the Council made changes to how it charged for care. It wrote to Ms Y to tell her of the changes. It told her it would need to complete a financial assessment and she may now need to contribute to the cost of her care.
19. In February 2017, the Council completed a financial assessment. It decided Ms Y did need to contribute to the cost of her care from April 2017 onwards and calculated how much she needed to pay.
20. In March 2017, Ms Y was unhappy with the outcome of the financial assessment and requested a review.
21. Ms Y says she had a meeting and many phone calls with Council officers. She said the Council told her it had withdrawn the assessed charge and she did now not have to contribute to the cost of her care. I have seen no record the Council told her this, but the Council did not send her any invoices for her care between April 2017 and March 2018.
22. In March 2018, the Council completed a financial review and increased Ms Y’s contribution. It wrote to her and told her what her assessed contribution would be from 9 April 2018.
23. Ms Y was unhappy with this and requested a review. She said her assessed contribution had not included all her Disability Related Expenditure (DRE). Officer A visited Ms Y in May 2018. They re-considered all her DRE and agreed to include some additional items which reduced her contribution. Ms Y requested the Council include her private physiotherapy costs as DRE. Officer A told Ms Y she would have to escalate this request to her managers. Officer A told Ms Y to pay her assessed contribution whilst awaiting the outcome of this decision.
24. The Council considered the request. It decided it would not include her physiotherapy costs as DRE, as physiotherapy was a health need which could reasonably be met by the NHS.
25. As part of the review, Officer A queried why Ms Y had not received invoices. The Council realised the invoice function was de-activated on Ms Y’s account. It re-activated the invoicing function. This generated a large invoice for home care costs between January 2016 and June 2018 which Ms Y received in July 2018.
26. From July onwards, the Council sent Ms Y monthly invoices for her care.
27. The Council wrote to Ms Y and told her what items it would include as DRE. It said it would not include her physiotherapy costs as DRE.
28. In August 2018, the Council wrote to Ms Y with the outcome of the financial review. The Council had reduced Ms Y’s assessed contribution (despite not including the physiotherapy costs as DRE), and backdated the reduced costs to April 2018. It confirmed she needed to pay for her care. Ms Y remained unhappy and told the Council she could not afford to pay her assessed contribution. She also said she was distressed by the large backdated invoice. The Council told her it would investigate the backdated invoice and told her not to pay it for now.
29. The Council investigated the backdated invoice. It realised that it had not sent Ms Y regular invoices since January 2016 and when the invoicing function was re-activated in June 2018, it had automatically generated the large backdated invoice. Internal emails show the Council had discovered similar invoicing errors with other cases and because of the errors, the Council had written off the accrued debt. Emails show officers thought this might apply to Ms Y, but did not put a case together for further consideration. The records do not evidence why officers did not do this.
30. Records show Officer A thought the backdated debt prior to April 2018 had been written off. Ms Y says Officer A also told her this.
31. By September 2018, Ms Y had not paid either the backdated invoice or any costs for care provided since April 2018. The Council decided it should pursue Ms Y for the unpaid costs. The Council contacted Ms Y to arrange a payment plan, but Ms Y did not agree to this.
32. Ms X made a formal complaint to the Council. She complained Ms Y’s current assessed contribution was too high as the Council had not taken her physiotherapy costs into account as DRE. She said Ms Y could not afford the assessed contribution. The Council said it did not receive this complaint.
33. The Council wrote to her asking her to start paying towards the debt or it would consider recovery action.
34. In October 2018, Ms X started to make weekly payments towards her care, but significantly less than her assessed contribution.
35. In December 2018, Ms X contacted us. She told us she had not received a complaint response, so we sent the Council the details of her complaint and asked it to respond.
36. In April 2019, Ms X had still not received a response. Ms X instructed a solicitor who wrote to the Council asking it to respond.
37. The Council responded to the complaint. It said a debt had accrued as Ms Y had not paid sufficient funds to the Council. It said she needed to contact the income collection department to make a repayment plan. If Ms Y did not do this, the Council said it would consider debt recovery action. It signposted her to the Ombudsman if she remained dissatisfied.
38. Between April and August 2019, the Council sent Ms Y monthly invoices for her care. Ms Y continued to make payments but less than her assessed contribution and made no payment towards the accrued debt.
39. In August 2019, the Council started recovery action.
40. Ms X and Ms Y remained unhappy and brought the complaint to us.

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My investigation

41. In its response to my enquiries, the Council said Ms Y had been in contact with the Council about the charges since March 2017. It said she would have been informed of the charges in February 2017 which would then start in April. It said a debt had accrued as she had not made sufficient payments, and the Council had the right to recover unpaid charges.
42. It said it would not take her physiotherapy costs into account as DRE as this was a health need which the NHS could meet. It said its position was in line with the Statutory Guidance.
43. The Council said it first received Ms X’s complaint in March 2019 and considered her complaint in line with the statutory regulations.

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Analysis

44. In February 2017, the Council did inform Ms Y of her assessed contribution and that charges for her care would start in April. The evidence shows Ms Y was aware of this, as in March 2017, she told the Council she was unhappy with the assessed charge.
45. However, although the Council told Ms Y of her assessed contribution, it did not send her any invoices during the 2017-18 financial year. This is fault. Ms Y had challenged the charges and says the Council told her the charges had been withdrawn. I have seen no evidence of this in Council records, but also no evidence it told how much she needed to pay, as the Council did not send her any invoices.
46. Although Ms Y did receive care between April 2017 and March 2018, Ms Y said she thought the Council had cancelled the charges. She had disputed the charges, and I have seen no evidence the Council reviewed her case and then confirmed to her what she needed to pay. The Council also did not send her any invoices. I cannot say for certain Ms Y knew what she needed to pay during this time.
47. In response to a draft of this decision the Council confirmed it has now addressed the issue which led to Ms Y not being sent invoices for her care from April 2017 to March 2018.
48. In summer 2018, records show officers discovered the invoicing error and that in similar situations the Council had written off the debt. Records show officers thought it may be appropriate to write off Ms Y’s debt because of the error but did not progress this for further consideration. The records do not explain why not. Records show Officer A thought the debt had been cancelled and Ms Y says the Council told her it had been. I cannot know for certain what the Council told Ms Y, but overall, the records show a lack of clarity and confusion.
49. Because the Council did not get back to her after she challenged the financial assessment, and also did not send her any invoices, I cannot be certain Ms Y knew what she had to pay before April 2018. The large backdated invoice caused Ms Y distress and has caused financial hardship. There is also a lack of clarity in the Council’s actions and decision making related to the debt. For these reasons, the Council should write off Ms Y’s charges accrued between April 2017 and March 2018.
50. In March 2018, the Council told Ms Y her assessed contribution from April 2018. During a visit in May 2018, Officer A told Ms Y she needed to pay her assessed contribution whilst awaiting the outcome of the further review. The law allows the Council to charge for care it arranges and the evidence shows it clearly told Ms Y how much she needed to pay from April 2018 onwards. The Council is not at fault for charging Ms Y for her care since April 2018.
51. After Ms Y requested a review, the Council acted appropriately by reviewing Ms Y’s DRE and its financial assessment. It considered her request to include her private physiotherapy costs as DRE but decided not to allow it. It then calculated her assessed contribution and informed her of the outcome. It reviewed the DRE and completed the financial assessment appropriately and in line with its practice guidance and the Statutory Guidance. There was no fault in how it calculated her assessed contribution.
52. The Council says it did not consider the complaint under its complaints policy. The statutory regulations provide a broad framework, but the Council has its own policy for investigating complaints about adult social care. If a council has a local policy, we expect a council to follow it, unless there are good reasons not to. I can see no good reasons in this case. The Council should have considered the complaint under its complaints policy. This is fault.
53. The Council said it did not receive Ms X’s complaint in September 2018. I have seen no evidence the Council did receive the complaint so am unable to make a finding on this point. However, we told the Council the details of her complaint in December 2018 and asked it to investigate and respond. It did not do so until April 2019. The Council’s policy says it will acknowledge a complaint within 3 working days and tell the complainant the likely timescales for it to provide a full response. It did not do this. It knew of her complaint in December 2018 but did not acknowledge or respond to it for nearly 4 months. This delay is fault which caused Ms X and Ms Y frustration and uncertainly, and time and trouble pursuing their complaint.

Agreed action

54. The Council has agreed the following action.
55. Within one month the Council will:

• write to Ms X and Ms Y to confirm it will write off Ms Y’s care charges between April 2017 and March 2018, and apologise for the delays in the handling of the complaint; and
• provide Ms Y with a statement confirming the charges outstanding since
  April 2018.

56. Within 3 months the Council will review its procedures to ensure it considers and responds to complaints about adult social care in line with its complaints policy.

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Final decision

57. I have now completed my investigation. The Council’s agreed actions should remedy the injustice caused by the fault I found.

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Investigator's decision on behalf of the Ombudsman