Oldham Metropolitan Borough Council (18 017 415)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 13 Sep 2019

The Ombudsman's final decision:

Summary: Mr X complains the Council failed to deal properly with the arrangements for his mother-in-law’s care, resulting in it charging her for a service she did not want. The Council did not deal with this properly. It needs to apologise, waive 50% of the care charges, pay financial redress to Mr X for the time and trouble it has put him to and improve its working practices.

The complaint

  1. The complainant, whom I shall refer to as Mr X, complains the Council failed to deal properly with the arrangements for his mother-in-law’s care, resulting in it charging her for a service she did not want.

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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, sections 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have:
    • considered the complaint and the documents provided by Mr X;
    • discussed the complaint with Mr X;
    • considered the comments and documents the Council has provided in response to my enquiries; and
    • shared a draft of this statement with Mr X and the Council, and invited comments for me to consider before making my final decision.

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What I found

  1. Mrs Y went into hospital in May 2018 with breathing problems. The Council visited her on 20 June when she was fit to go home. She had no family with her. The Council decided she would benefit from some help from its Reablement Team, which can last for up to six weeks and for which there is no charge. The Council proposed three calls a day to help with food preparation and medication, and to ensure safety when washing, showering and dressing. Mrs Y said she did not want direct help with personal care. She also said she did not want long-term services.
  2. Mrs Y returned home on 20 June. When the Reablement Team visited, Mrs Y said she did not need any help and could cope on her own.
  3. Following contact from Mr X, the Reablement Team visited again on 25 June. Mrs Y agreed to accept one call a day from the Reablement Team in the mornings. She would not accept a call in the evenings, although the Council offered one.
  4. Mrs Y went back into hospital on 2 July with breathing problems and a temperature.
  5. On 3 July the Council told Mr X it would close Mrs Y’s case if she stayed in hospital more than 24 hours. It said it would assess her again when fit to go home.
  6. On 12 July Mrs Y was fit to go home. The Council assessed her needs. Mrs Y was reluctant to accept help. The Council told her she would need calls from two carers four times a day and would also need to live downstairs. The Council did not identify any grounds to question Mrs Y’s mental capacity. The assessment contains a “client declaration” which includes these statements:
    • “I confirm that it has been explained to me that I will be required to pay towards my care and support needs and the amount will depend on my financial circumstances. I understand that the maximum could be the full cost of my services and that the financial assessment completed calculates how much my contribution will be,”
    • “I understand that if I refuse a financial assessment I will have to pay the full cost for my services, if I change my mind at a later date any reduction in my charges will not be backdated”.
  7. The Social Worker completed the declaration for Mrs Y as she was an “inpatient”.
  8. When the Council visited on 13 July Mrs Y agreed to accept a package of care, as discussed the day before. The record of the visit (made on 17 July) says the Council told Mrs Y about its charging policy and the need for a financial assessment, to which she agreed.
  9. On 16 July the Council told Mr X Mrs Y had unrealistic expectations of herself but had agreed to accept a package of care. It said her bed needed moving downstairs, which Mr X did straight away. The Council visited Mrs Y in hospital and noted that, although agreeable, she remained reluctant to accept care.
  10. Mrs Y returned home on 19 July. The Council arranged for a care agency to provide her care. Mrs Y went back into hospital that evening.
  11. Mrs Y was fit to leave hospital on 22 July. She turned down the offer of residential respite care. After visiting her in hospital, the Council arranged for her care to restart in the evening of 23 July.
  12. Mrs Y’s July care and support plan says a package of care would start on 23 July. It says Mrs Y’s indicative personal budget was £172 - £240 a week but does not identify an agreed personal budget. It refers to four calls a day:
    • mornings – 2 carers for 1 hour
    • lunchtimes – 2 carers for 30 mins
    • teatime – 2 carers for 30 mins
    • bedtime – 2 carers for 30 mins
  13. On 17 August the Council assigned an Officer to do a financial assessment for Mrs Y, to find out how much she could afford to pay towards the cost of her care. On 21 August Mrs Y told the Officer she would need a day to gather information, so the Officer arranged to visit her the next day. The Council has no record of a visit on 22 August, nor anything to explain why it did not go ahead.
  14. Mrs Y went back into hospital on 29 August. The Council visited her on 31 August to discuss the arrangements for returning home. The care agency said it could restart its visits on 3 September.
  15. The Council visited Mrs Y in hospital again on 3 September. There is a long record of the visit, which suggests it took the form of a review of her needs before her return home later that day. It says Mrs Y would receive four calls a day from the care agency:
    • 09.00 2 carers for 60 mins
    • 13.30 2 carers for 30 mins
    • 16.45 2 carers for 30 mins
    • 20.30 2 carers for 30 mins
  16. Mrs Y’s package of care restarted at 13.30 on 3 September.
  17. By 11 September Mrs Y was back in hospital.
  18. The Council visited Mrs Y on 17 September and arranged to restart her care package on 18 September so she could go home. Mrs Y said she was happy with her carers and her family gave her a lot of help.
  19. The Council tried calling Mrs Y on 17 September to arrange a visit on 25 September to review her needs, but she was still in hospital. Its records say it arranged for a letter to be sent to her about visiting at 10.30 on 25 September.
  20. The Officer assigned to do Mrs Y’s financial assessment tried calling her on 19 and 20 September but there was no answer and no facility to leave a message.
  21. The Council visited Mrs Y to review her care package on 25 September. Mrs Y said she had not received a letter about the visit. After reviewing her needs, the Council said it would reduce the number of carers visiting on each call to one, as she could now manage transfers independently. The Council updated Mrs Y’s care and support plan on 3 October with a start date of 26 September.
  22. The Council wrote to Mrs Y on 26 September. It said she had not responded to three attempts to complete a financial assessment. It said she would therefore have to pay the full cost of her care.
  23. Mrs Y went into hospital again on 3 October. The Council was going to restart her package of care when she went home but Mrs Y cancelled it. Her family met her care needs. By January 2019 they were struggling to cope and contacted the Council again. But Mrs Y died later that month.
  24. There is no dispute over the fact that Mrs Y had over £23,250 in capital, so would have to pay the full cost of her care. Mr X says:
    • they knew there would be a charge for care but did not know when reablement stopped and the chargeable care started;
    • the first they knew about the charge was when the Council wrote to Mrs Y on 26 September;
    • Mrs Y thought she would be paying £7 a week;
    • Mrs Y would not have agreed to care if she had known what she would have to pay.
  25. The Council accepts its invoice for care provided from 1 to 8 October did not take account of the fact Mrs Y went into hospital on 3 October. It is therefore correcting this.

Is there evidence of fault by the Council which caused injustice?

  1. This complaint has revealed some poor working practices by the Council.
  2. The Council did not give Mrs Y the opportunity to have someone else with her when it assessed her needs in hospital.
  3. There is a conflict of interest in allowing Social Workers to sign the “client declaration”. The fact that Mrs Y was in hospital did not mean she could not sign the declaration for herself.
  4. The Care & Support Statutory Guidance (the Statutory Guidance) says councils should “be clear and transparent, so people know what they will be charged” and:
    • “ensure there is sufficient information and advice available in a suitable format for the person’s needs, in line with the Equality Act 2010 … to ensure that they or their representative are able to understand any contributions they are asked to make”. Paragraph 8.3.
  5. It is unrealistic to expect people to remember everything they have been told, particularly when they have been ill in hospital. The Council should provide written information so people can make informed decisions about their care.
  6. The Statutory Guidance says care and support plans must include the final personal budget. But the Council’s care and support plans only include the indicative personal budget. The Council must have known how much the care it was commissioning would cost. It should have shared this information with Mrs Y. Besides, there is no evidence the Council gave Mrs Y a copy of her care and support plan, as required by the Statutory Guidance.
  7. The Council did not refer Mrs Y for a financial assessment until over a month after it assessed her needs. There is nothing to explain why the financial assessment planned for 22 August did not go ahead. The Council later told her she had failed to respond to three attempts to do a financial assessment. But the evidence does not support that claim. When the Council could not get through to Mrs Y over the telephone, it should have written to her to arrange a date for a financial assessment.
  8. These failings amount to fault by the Council.
  9. It may have been clear to the Council that when it started providing care in July it was no longer providing reablement care. But it was not clear to Mrs Y or her family because the Council did not provide clear information about that. When told what she would be charged, Mrs Y decided to cancel the care arranged by the Council.
  10. I have considered whether there are grounds to recommend waiving some or all of the charges. Given that Mrs Y decided to cancel her care when she realised how much she had to pay, it seems likely she would not have accepted chargeable care if the Council had provided clear information about the charges at the start. However, it is clear Mrs Y needed the care provided by the Council and was happy with it (see paragraph 22 above). It will also have been of benefit to her family. Nevertheless, the Council should waive 50% of the care charges. Mr X is entitled to an apology and some financial recompense for the time and trouble he has been put to in pursuing the complaint. The Council also needs to take action to improve its working practices.

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Agreed action

  1. I recommended the Council:
    • within four weeks, writes to Mr X apologising for its failings, waives 50% of the care charges and pays him £250 to reflect the time and trouble he has been put to in pursuing his complaint;
    • within eight weeks identifies the action it needs to take to ensure:
        1. people have the opportunity of having someone to support them during an assessment;
        2. people receive written information about charges;
        3. care and support plans include the agreed personal budget;
        4. everyone receives a copy of their care and support plan;
        5. declarations are either completed by the person themselves or by a third party, not Council officers;
        6. it makes timely referrals for financial assessments;
        7. it makes an appointment in writing, if it has not been possible to do so over the telephone.

The Council has agreed to do this.

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Final decision

  1. I have completed my investigation as the Council has agreed to take the action I recommended.

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Investigator's decision on behalf of the Ombudsman

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