Summary: Mr X complains about the Council’s handling of contact with him over a change in the cost of live-in care for his late aunt. There was fault by the Council which caused injustice to Mr X. The Council has taken action to remedy that injustice.

The complaint

1. Mr X complains about the Council’s handling of contact with him over a change in the cost of live-in care for his late aunt. Mr X says:
• Adult social care was misleading about how much they were prepared to pay for the costs of replacement live in care;
• unclear about the process that needed to be followed;
• took eight months to tell him they would not cover the costs;
• did not respond to subsequent letters;
• did not agree to pay for the costs beyond the date that they responded;
• and did not allow time to discuss their decision or put new care arrangements in place.
2. Mr X says there is a shortfall in the care costs which he now wants the Council to fund. Mr X also complains of stress and inconvenience he suffered in trying to get responses from the Council.

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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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal.

(Local Government Act 1974, section 24A(6), as amended)

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 reviewed the complaint and background information provided by Mr X and the Council. I sent a draft decision statement to Mr X and the Council and considered the comments of both parties on it.

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What I found

Background

6. Mr X had power of attorney to deal with his late aunt’s finances. The Council provided a direct payment to meet the costs of her care less a financial contribution.
7. In October 2017, Mr X and the company which provided care services to his aunt agreed to terminate the agreement. In November 2017, Mr X telephoned the adult care team. He spoke with an officer and advised her that he had found another company to provide care for his aunt. He said the company was on a list of care providers provided by the Council.
8. The officer’s notes of the conversation state Mr X told her the proposed new company may charge less than the former care company. The officer told him the Council was fine with his choice but asked him to ensure the company was registered with the Care Quality Commission and could meet his aunt’s needs. The officer also asked him to complete a new financial assessment form for his aunt.
9. It appears Mr X sent an email to the adult care team later on the same day of his conversation with the officer. The email included an extract of his interaction with the proposed care company. The extract showed the proposed cost of the care would be £950 per week. Mr X’s aunt received £867.74 per week in direct payments from the Council at the time. She had to contribute £68.25 per week towards her care.
10. Mr X entered into a contract with the new company from 30 November 2017. The charge was £950 per week.
11. Mr X completed the financial assessment form at the end of December 2017. He provided further information requested by the Council in January 2018.
12. The council completed the financial assessment in May 2018. The Council decided the direct payments would remain at the same amount of £867.74 but a financial contribution from Mr X’s aunt was no longer required. It backdated the waiving of the contribution to January 2018.
13. The Council’s practice is to deduct a person’s financial contribution from the assessed sum it provides in the direct payment. So, because the Council had not dealt with its financial assessment properly, it continued to deduct the previously assessed contribution of Mr X’s aunt from the direct payments it provided.
14. Mr X complained that the Council had provided inadequate funds in June 2018. This prompted an apology from the Council and a commitment to credit his aunt’s account with all the contributions it had deducted from the beginning of January 2018.
15. In August 2018, the Council responded to a further complaint from Mr X. It explained the direct payment process and iterated the explanation above about the personal contributions.
16. The Council said the care company Mr X had employed charged £950 per week but there were companies it was aware of that charged less than the direct payment his aunt received each week. It advised him the company was not one of the registered providers contracted to work with the Council. It advised Mr X to negotiate with the company to reduce its price or allow the Council to contract with alternative providers for his aunt.
17. Mr X complained that he had spoken to the Council in November 2017 and had been given the name of the new company and advised that an increase in costs would be acceptable. Mr X conveyed his expectation that the increase in costs since November 2017 would be reflected in the direct payments, but they had not.
18. The council’s response reflected its own view of the November 2017 conversation Mr X had with one of its officers based on her notes. It said Mr X subsequently provided an email that showed the cost of a live-in carer would be £950 per week. But it said Mr X did not then confirm whether he employed the company or its final costings.
19. However, the Council said it had not supported Mr X in the best way possible. It apologised and offered him a backdated payment of £950 from 10 November 2017 (when he first spoke to the officer on the telephone) to 1 August 2018 when it responded to his complaint. This was a sum of £3,125.88.
20. There was further correspondence between Mr X and the Council surrounding additional care costs; the cost of the notice period set out in the contract between Mr X and the company; and a refund of an advance payment of the direct payments paid into Mr X’s aunt’s account. I will not set out the correspondence here for the sake of brevity. The Council did not agree to meet costs beyond £950 per week up to 1 August 2018 and did not agree to meet the cost of a notice period. It also insisted on a need to refund payments it made in advance.

Analysis

Fault and injustice

21. Fault by the Council lies in the delay in completing the financial assessment. The necessary information was provided to the Council in January 2018. A reasonable period of four weeks could be used to complete the process and so there was unreasonable delay of around three to four months.
22. Beyond this, the Council accepted it ‘did not support Mr X in the best way possible’. It said it should have made its expectations in terms of the costs of a replacement care company clearer to Mr X in November 2017 and followed up on the matter with him.
23. I consider this is a ‘marginal’ judgement in terms of fault by the Council. A direct payment is the amount of money that the local council has to pay to meet the needs of the person with assessed needs. The direct payment lets a person choose and buy care services themselves.
24. I have seen nothing to suggest Mr X was unaware of the sum of direct payments his aunt received in November 2017. Given this, the decision to engage a company which charged more than the sum of direct payments was one that he made with full knowledge that there would be a shortfall. That was the wrong judgement to make without getting clear authorisation from the Council that it would increase the direct payments.
25. There is uncertainty about the Council’s actions. This was acknowledged by the Council with reference to not supporting Mr X in the best way possible. This uncertainty was remedied by the Council’s decision to provide a backdated payment of the care costs between 10 November 2017 and 1 August 2018.
26. Whilst the payment does not account for all the care costs incurred between November 2017 and November 2018, I am satisfied it is a proportionate remedy for the Council’s part in the matter. Mr X will have to accept the remainder of the shortfall was the consequence of his decision to engage the care company prematurely and with the knowledge that its costs were higher than the direct payments. I do not consider a further remedy is warranted by way of additional payments by the Council to Mr X’s aunt’s estate.

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Final decision

27. There was fault by the Council for which it took action to remedy the injustice to Mr X and his late aunt.

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Investigator's decision on behalf of the Ombudsman