Summary: Mrs R complained about the Council’s handling of her mother’s care costs and its delays in responding to her complaint. The Council was late sending a bill of increased care costs, which caused the family worry and stress. It has apologised and reduced the invoice to reflect the injustice caused by its delay. It will review its processes to avoid a recurrence.

The complaint

1. Mrs R complains, on behalf of her mother, Mrs X, about the Council’s delay in passing on an increase in care costs between February 2017 and January 2018, despite the family paying the Council an annual fee for it to administer the costs on their behalf. She also complains about the time the Council took to address her complaint.
2. Mrs R says if the Council had sent Mrs X an invoice in a timely way, the increased care costs would have meant Mrs X’s capital fell below the upper capital limit sooner, which means she would have had to pay less money towards her care costs. Instead, the Council sent a large and unexpected invoice in January 2018 by which point she no longer had the capital to pay it.

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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. 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)
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)
6. Mrs R received the disputed invoice in January 2018 (although it is dated December 2017) and she complained to us in February 2019, which was 13 months later. However, I have exercised discretion to investigate because it is clear Mrs R has been pursuing the matter with the Council since January 2018 and I am satisfied there are sufficient records available to make a robust and defensible decision.
7. 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

8. I considered:
• the information provided by Mrs R;
• the Council’s replies to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies.
9. Mrs R and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

10. 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)
11. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”.
12. Where the person has capital above the upper capital limit (£23,250) they must pay their care costs in full. Where they have capital under this limit, they will pay an assessed contribution towards their care costs. The council will carry out a financial assessment to calculate the assessed contribution. The assessed contribution must not reduce the person’s income below the minimum income guarantee, which is the level of income support plus 25%.
13. A person with more in capital than the upper capital limit can ask their local authority to arrange their care and support for them. In such cases, the local authority may apply an administration fee to cover its costs.

What happened

14. Mrs X lives at home with a care package. Mrs X had over the capital limit and so paid for cost of her care package. She paid the Council £250 each year to manage the care package on her behalf. Following a review in February 2017, Mrs X’s care package increased. This increased the cost of the care package. The Council did not tell Mrs X about the cost increase. She was not aware of it until she received an unexpected bill for £5,028.22 in early January 2018. This bill was for the difference between the amount she had been paying and the new increased cost.
15. Mrs R complained, on behalf of Mrs X, that it was unfair to charge this because the underpayment was due to the Council’s error. She also said Mrs X had not received the number of hours of care that had been billed.
16. In December 2017 Mrs X’s capital fell below the upper capital limit. The Council carried out a financial assessment and decided she did not need to contribute to the cost of her care from 31 December 2017.
17. The Council responded to the complaint in late March 2018.
• It accepted there was a delay in passing on the increased charge.
• It also accepted that if the disputed invoice “had been raised timely” Mrs X would have received “a free service sooner”.
• It acknowledged there were 59 hours of care not received.
• It reduced the invoice to reflect the missed service and its delay in processing the increase, which left £3,000.00 to pay.
18. Mrs R responded that Mrs X’s savings were now below the upper capital limit and she would have received the free care sooner but for the Council’s delay. Mrs R offered to pay £10 per week towards the disputed invoice.
19. In July 2018 Mrs X’s husband died. Mrs X’s income changed as she was now receiving a widow’s pension. The Council did not know about this so did not carry out a fresh financial assessment.
20. In December 2018, the Council sent a reminder about the £3,000.00 outstanding. Mrs R responded that she had offered to pay £10 per week by direct debit but the Council had not collected this. The Council carried out a financial assessment and decided she should pay £260 per week towards her care from 6 January 2019, based on her increased income.
21. In February 2019 Mrs R complained to us because she wanted the disputed invoice waiving and a re-assessment of Mrs X’s contribution to her care costs. In early April we asked the Council to investigate her complaint and it responded to her in early May 2019. It said:
• Her concerns about the disputed invoice had been addressed and the invoice reduced to £3,000.00. It refused to waive the invoice.
• The new assessed contribution was effective from January 2019 even though her income had changed in July 2018.
• It agreed to carry out a fresh financial assessment to make sure the assessed contribution was correct.
22. The parties continued to correspond between May and October 2019 but were not able to reach agreement. Mrs R wanted the Council to waive the disputed invoice but the Council said the care was provided so Mrs X should pay for it.
23. Mrs R complained to us in mid October 2019. She said she was not happy with the outcome nor with the time taken to address the complaint.
24. In response to my enquiries, the Council calculated the amount Mrs X saved because it did not backdate the assessed charge to July 2018. This was £8,236.54 in total. This is based on an assessed contribution of £364.91 per week from 1 August 2018 to 5 January 2019. It also stressed that it had previously reduced the outstanding invoice to reflect the injustice caused by its delay in invoicing for the increased care costs.

My findings

25. The Council accepted there was a delay in invoicing Mrs X for the increased care costs between February and December 2017. It said this was because the social worker overlooked telling the finance team. There was a further delay once the finance team were notified due to a backlog of work. This delay was fault.
26. Mrs X received the care and the Council was entitled to charge for it. She was receiving care before the package changed in February 2017, which she was paying for, so she was aware that the care was charged for. She could have anticipated an increase in the costs when the package changed but she was not able to calculate what the increased costs would be.
27. Mrs R says if the Council had processed the increased care costs in a timely way, Mrs X would have paid those costs from her capital and would not have faced an unexpected bill some months later. Mrs R calculates it would also have meant Mrs X’s capital would have fallen below the threshold in early October 2017 and she would therefore have been entitled to care without any charge three months earlier. Mrs X was paying an assessed contribution of £350 per week at that time so this would have saved contributions of just over £4,500.
28. In its complaint response the Council acknowledged that if it had sent the invoice in a timely manner Mrs X would have been entitled to free care earlier than December 2017. However, it was unable to confirm when her capital would have fallen below the threshold because it does not have evidence of Mrs X’s capital from February 2017 onwards.
29. When Mrs R complained the Council accepted there were failings. It apologised and reduced the invoice by £1,288.47 to reflect this. I have considered whether this was sufficient to remedy the injustice caused. I have taken into account there was a delay in Mrs X telling the Council her financial situation had changed in July 2018. The change meant she needed to contribute to the cost of her care again but the Council did not back-date those charges. If it had Mrs X would have been required to pay an additional £8,236 in care costs. I have also taken into account Mrs X was paying the Council £250 per year to arrange the care on her behalf. Given this, I am satisfied the Council’s offer was an appropriate remedy for the injustice caused.
30. Although Mrs R offered to pay £10 per month towards the disputed invoice the Council did not take steps to collect this. It says this was because its finance team did not receive the direct debit form. I cannot say whether the Council did not receive the form or whether it got lost before reached the finance team. However, this did not cause Mrs X a significant injustice because her position was not changed. When she sent a further direct debit form in January 2019, the payment was set up without delay.

Complaints handling

31. Mrs R complained in January 2018 and the Council responded in March 2018. It offered to reduce the bill and Mrs R agreed to pay the outstanding amount by instalments so it thought the matter was resolved. There was then a failure to set up the direct debit, about which I have not made a finding, and then a complaint to us in February 2019. We asked the Council to respond to the complaint in early April 2019 and it did so in May 2019.
32. Mrs R was unhappy with the response and wrote to the Council again in early June 2019. The Council did not respond formally until early October 2019. However, during the intervening period, the Council reassessed Mrs X’s care needs, and recalculated the assessed charge, taking into account some disability related expenses, which reduced the amount Mrs X needed to pay towards her care needs.
33. Although I understand Mrs R remained unhappy with the outcome because the Council did not agree to waive the disputed invoice in its entirety, and I can see the correspondence was protracted, I do consider the Council took reasonable steps to respond to her concerns and was not at fault.

Agreed action

34. The Council will, within three months of the date of the final decision, remind relevant staff of the importance of communicating changes in care packages to the finance team without delay, and review its processes to see whether other action can be taken to prevent this problem recurring in future. It should report to us on what changes it has made.

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Final decision

35. I have completed my investigation. I have found fault leading to personal injustice. The Council has apologised and taken action to remedy the personal injustice suffered. I have recommended action to prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman