Summary: Mrs M complained the Council wrongly charged for her late mother’s care and delayed sending her invoices leading to a large and unexpected bill. The Council was at fault. It charged for care it did not provide and did not make Mrs Y aware of before entering extra care sheltered accommodation. It also delayed in providing invoices to the executor following Mrs Y’s death. To remedy this, the Council has agreed to waive some costs, issue an amended up to date statement for the remaining outstanding costs for Mrs Y’s care and review the information it provides about charges to prospective tenants for extra care sheltered accommodation.

The complaint

1. Mrs M complained the Council wrongly charged for her late mother’s care and following her mother’s death, the Council delayed in sending her invoices amounting to costs of £7,945.74.
2. Mrs M said this caused her worry and distress as she has now fully distributed her mother’s estate and cannot pay the outstanding invoices herself.

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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. 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 have spoken to Mrs M and considered evidence from her and the Council.
6. I have written to Mrs M and the Council with a draft of this decision and given them an opportunity to comment.
7. I have considered the comments received before making this final decision.

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What I found

Background

8. The Care Act 2014 gives councils the power to charge for care and support services they provide or arrange. Charges may only cover the cost the council incurs. Where a council decides to charge it must do so in line with the Care and Support (Charging and Assessment of Resources) Regulations. It must assess how much the person can afford to pay by completing a financial assessment.
9. The Care and Support Statutory Guidance 2014 makes it clear that the approach to charging for care and support needs should be clear and transparent so people know what they will be charged.

What happened

10. The Council assessed Mrs Y’s needs in February 2015. Her support plan listed her needs as support with medication, washing and dressing, preparation of meals and domestic tasks including housekeeping and shopping. This comprised of a one hour visit every morning, 30-minute visits at lunchtime, afternoon and evening, two hours a week to support with housekeeping and weekly night cover. The support plan listed her personal budget as £263.50.
11. Mrs Y began living in an extra care sheltered scheme in March 2015. She paid her rent and care costs separately. Shortly after she moved in, she reduced her care services to two calls a day with support for shopping and housekeeping. The notes record Mrs Y was unhappy about the night-time calls as she preferred her privacy.
12. According to the Council’s records, it provided Mrs Y with financial assessment forms in February and May to consider if she was eligible for help to pay for her care. However, Mrs Y did not return a financial assessment form to the Council.
13. The Council therefore sent a letter in May 2015 to confirm that Mrs Y would be liable for the full cost of her care. The Council sent a further letter to confirm this in March 2016. The Council sent Mrs Y a further financial assessment form in October 2016. Mrs Y did not return this form. Consequently, Mrs Y was responsible for paying for her own care costs.
14. The Council assessed Mrs Y’s needs again in November 2015. The support plan issued following this assessment recorded Mrs Y needed a morning visit every day to assist with personal care, visits twice a day to support with meal preparation and weekly visits to assist with housekeeping and shopping. It recorded Mrs Y ‘would prefer not to have a night time check call, once settled at night’. It gave Mrs Y’s personal budget as £254.
15. The Council sent Mrs Y a letter and revised support plan in May 2016. Mrs Y’s support plan now included three hours support a week to assist with accessing the community, such as attending appointments. The letter confirmed that her personal budget (the costs for her care) would be £290.76 per week.
16. The records show the Council invoiced Mrs Y for her care charges and these were paid for care provided up to the end of February 2016. In August 2016 the Council invoiced Mrs Y for care received between February 2016 and August 2016. It sent a further invoice in October 2016 for care received by Mrs Y between August 2016 and October 2016. The invoices amounted to £9,057.46. This included charges for night care of £787.75. In November 2016 Mrs Y made a payment of £2,000.
17. In February 2017, Mrs M called the Council, asking it to reduce Mrs Y’s care package to one hour in the morning only. The Council agreed to contact the care agency to tell them of the change.
18. Mrs M also emailed the Council in February, saying the care charged for was more than Mrs Y wanted or had received. She said she had told the care provider Mrs Y did not want or receive night care. She confirmed the final bill of that date was £7,057.46 but said this should be adjusted to reflect the change in the care provided and that Mrs Y did not receive night care.
19. In March 2017, Mrs M phoned the Council about the invoice which included charges for night care as she had not had a reply to her email. Mrs Y asked the Council to adjust the invoice.. The Council notes record an officer telephoned Mrs Y and told her the night charges were compulsory as part of the scheme and non-negotiable.
20. Mrs Y died in May 2017. Mrs M was executor to her estate. Mrs M was granted probate in September 2017.
21. The Council says it emailed Mrs M in October 2017 and confirmed night care charges were part of the contract and must be paid. Mrs M said she never received this email. The email said the Council had not sent any invoices since October 2016. She should receive the invoices soon.
22. The Council invoiced Mrs Y’s estate at the start of November 2017 for the care provided to Mrs Y between October 2016 and when Mrs Y died in May 2017. This was for £4,557.96. Mrs M paid £3,669.68. This left £888.28 of outstanding costs invoiced in November 2017. Mrs M says she was unaware of the outstanding amount and the early costs of £7,057.46 when she distributed the estate fully in April 2018 in her role of executor.
23. The Council did not then contact Mrs M again until October 2018. It wrote to Mrs M to say there was an outstanding debt of £7,945.74. Mrs M disputed the invoices and complained in November 2018. The Council did not uphold the complaint. It considered the debt was due and should be paid. It explained that as executor to Mrs Y’s estate, Mrs M was now personally responsible for the charges, amounting to £7,945.74.
24. Mrs M’s solicitor then wrote to the Council. The solicitor said the Council has not made a claim on the estate within the 6-month period following the grant of probate so Mrs M and the estate would not be liable for the charges. It also said the estate had been distributed.
25. Mrs M offered to pay £3,500 as this was as much as she said she could afford. The Council rejected this, but suggested Mrs M pay £3,500 as a first instalment in a payment plan in which she would then pay £200 per month until the amount was paid. Mrs M declined this offer, as she said she would not be able to afford it. At present the amount remains outstanding.
26. In response to my enquiries, the Council said “that although the terms and nature of the extra care scheme are explained verbally there is no record of this kept… there is a case note detailing that the compulsory nature of the night care scheme… was explained to [Mrs Y’s] daughter but this was some time after the invoices had been sent and her mother had passed away.” It continued, “we will be reviewing our procedures”. The Council says the delay was caused by staff restructuring, which led to team member changes.

Findings

The cost of care

27. The Care and Support Statutory Guidance 2014 makes it clear that the approach to charging for care and support needs should be clear and transparent so people know what they will be charged. The Council cannot show that Mrs Y agreed to the night charges or was told about the charges before moving into the extra care sheltered accommodation. This is fault. Mrs Y was not fully aware of the costs involved when she moved to extra care housing. She therefore did not have the opportunity to consider whether this was something she was willing to pay for whether she used it or not.
28. The care assessments show that Mrs Y did not want or have an eligible need for the night care. There is no evidence of an agreement, Mrs Y did not use the night care and no requirement from the care plan for Mrs Y to receive night care.
29. The fault has meant that Mrs Y, and Mrs M as her executor, have paid for care which the Council did not provide or consider Mrs Y needed. This will affect not only the charges currently outstanding but also those already paid.
30. Mrs M has also said that the Council charged for day care which was not needed. Mrs Y’s care and support needs were set out in her support plans and the invoices reflect the personal budget as set out in the support plan. However, the Council’s notes record that in February 2017 Mrs M requested Mrs Y’s care package be reduced to one visit a day as she did not need the other visits. The notes record the Council agreed to tell the care provider about this. There is no evidence to show Mrs Y’s needs were reassessed or her care package reduced. This is fault and means Mrs M was charged for more care than Mrs Y wanted or needed from February 2017 onwards.

The delay in invoicing the estate

31. There was a delay in the Council providing Mrs M with information about the remaining charges following Mrs Y’s death in May 2017. The invoices were not, according to the Council’s records, issued until November 2017, six months after Mrs Y’s death. This was fault. The Council has said this was due to staff restructuring in the time following Mrs Y’s death.
32. Mrs M says she did not receive either the email of October 2017 or the invoices sent in November 2017. She says she paid the Council for what she thought was the final bill.
33. 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.
34. As Mrs M made a payment, this would suggest at least one invoice was provided to the estate after Mrs M was granted probate. While I cannot say whether she did receive the invoices or only received one invoice, it seems more likely than not that the Council issued them.
35. The injustice of the six-month delay is minimal as Mrs M did not receive the grant of probate until September 2017 to start paying the estate’s debts. This is within the time period that a claim can be made on the estate for a debt. Consequently, the Council correctly claimed the debt from the estate funds. The delay between May and November 2017 has not changed this. Consequently, a remedy is not required for this fault. As the funds were fully distributed in April 2018, with the care costs outstanding, Mrs M as executor will have become personally liable for the debt.

The invoice disputed before May 2017

36. Mrs M has said she was not contacted about the outstanding charges of £7,057.46 after her mother’s death. However, the Council had invoiced Mrs Y for these debts in August 2016 and October 2016. Mrs M emailed the Council about the invoices in February 2017 and discussed them with a Council officer in March 2017. As she was aware of the debt before becoming executor, the Council is able seek payment of the charges from the estate.
37. However, the Council was at fault as it did not contact Mrs M about the debt until October 2018, nearly a year following the invoices being issued. However, Mrs M was previously aware of the debt so I cannot say this caused a significant injustice. It would have been beneficial for both the Council and Mrs M as executor for the charges to be followed up earlier. This may be something the Council wishes to consider in future to improve its service.

Agreed action

38. To remedy the fault the Council should, within one month of this decision::
• waive the outstanding night care charges and refund those already paid. It is open to the Council to offset this against the outstanding debt;
• reduce the day care charges from February 2017 onwards to reflect the requested reduction in the day care provision; and
• issue an amended up to date statement for the remaining outstanding costs for Mrs Y’s care.
• Within two months of the final decision on the complaint the Council should review its procedures to ensure that it provides information to explain the components of its charges to prospective extra care tenants and this is acknowledged by tenants before they enter extra care sheltered accommodation.

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Final decision

39. I have completed my investigation. There is fault leading to injustice. The Council has agreed to remedy the injustice caused to Mrs M.

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Investigator's decision on behalf of the Ombudsman