Summary: Mrs X complained on behalf of her mother, Mrs Y. Mrs X complained about the Council’s handling of Mrs Y’s non-residential care fees between 2014 and present. The Council was at fault. It failed to carry out a financial assessment of Mrs Y until 2018. The fault led to a large backdated invoice for care fees which caused Mrs Y distress. The Council was also at fault for the delay in invoicing Mrs Y for the care and for its poor complaint handling which caused Mrs Y further distress and frustration. The Council agreed to pay Mrs Y a total of £700 to acknowledge the distress, frustration and uncertainty caused. It also agreed to arrange an appropriate payment plan for Mrs Y to pay the outstanding invoice.

The complaint

1. Mrs X complains on behalf of her mother, Mrs Y. Mrs X complains about the Council’s handling of Mrs Y’s non-residential care fees between 2014 and present. Mrs X complains:
• the Council failed to carry out financial assessments on Mrs Y between 2014 and 2018.
• the Council invoiced Mrs Y for nearly £6700 of backdated fees following a financial assessment in 2018.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)

Back to top

How I considered this complaint

4. I spoke to Mrs X about the complaint.
5. I considered the Council’s response to my enquiry letter.
6. Mrs X and the Council had the opportunity to comment on my draft decision. I considered their comments before I made my final decision.

Back to top

What I found

7. Prior to the Care Act, councils were allowed to charge for non-residential care under the Health and Social Services and Social Security Adjudications Act 1983. The former Government guidance titled ‘Fairer charging policies for Home Care and other non-residential social services’ set out how councils assessed and calculated the amount adults paid towards their care.

The Care Act 2014 and charging

8. In 2014, the Government introduced the Care Act. This legislation replaced all previous guidance about how councils assess and provide care for adults in need. It includes guidance on charging for care.
9. The Care Act states councils have discretion to charge people for the care they receive. If a council decides to charge for care, it must complete a financial assessment. If a person refuses a financial assessment they must self-fund their care. In making decisions on charging the Care and Support Statutory Guidance sets out that the approach to charging for care and support needs should be clear and transparent, so people know what they will be charged.
10. Local authorities should clearly discuss with the person or their representative at the outset that care and support is a chargeable service and that where the person has been assessed as being able to afford to do so, they will be required to contribute to the cost of that care. (Care and Support Statutory Guidance paragraph 7, Annex D:Recovery of debts)
11. Where a person has accrued a debt, the local authority may use its powers under the Care Act to recover that debt. In deciding how to proceed, the local authority should consider the circumstances of the case before deciding a course of action. For example, a local authority should consider whether this was a deliberate avoidance of payment or due to circumstances beyond the person’s control.

Financial assessment

12. Following a care needs assessment the Council must offer a financial assessment to decide who will pay for the eligible care needs. Councils can charge for care services. The Council should provide clear information about charges and how it assesses them at the time it finds out care needs. If a person refuses a financial assessment they must self-fund their care.
13. Persons who have over £23,250 of eligible capital will be expected to pay for the full cost of their care fees. However, once their capital has reduced to less than £23,250, they only have to pay an assessed contribution towards their fees.
14. Councils can consider both capital and weekly income when completing financial assessments. If a person needs care to stay in their own home, the means test will not include the value of their property.
15. Weekly income includes state benefits such as:
• Personal Independence Payment;
• Attendance Allowance (care component);
• Disability Living Allowance (care component) and
• retirement pensions.
16. The Council assesses a person’s contribution to their care by totalling their weekly income and then deducting:
• The minimum income guarantee- this is a standard allowance set by the Government and is what it considers to be the minimum amount of money a person needs. For a person over the age of 60 this is £189.00 weekly.
• Disability related expenditure - includes costs such as clothing, equipment and laundry. The Council deducts these allowances from a person’s overall weekly income; the remaining figure is the amount the person must pay for their care.
• Housing costs - such as rent, mortgage, or council tax if this is applicable.

What happened

17. Mrs Y is elderly and lives independently at home. She has had domiciliary care since 2013 with twice daily visits from carers. Mrs X also regularly visits Mrs Y and assists with her care. In 2014 Mrs Y signed a new agreement following a needs reassessment which reduced her package of care to three times per day for 15 minutes a time. The agreement stated the Council agreed to purchase non-residential care as specified…. ‘and to provide notification of the financial contribution required by the Service User and the method by which it has been calculated’. It went on to state a financial re-assessment of the service user’s ability to contribute would be undertaken annually.
18. Mrs Y signed the form. At the bottom it stated: ‘I accept the terms and conditions of the non-residential care service and agree to make the financial contribution to the local authority or provider as notified by Darlington Borough Council following my financial assessment’.
19. The Council continued to review Mrs Y’s care and support needs between 2014 and 2018. In 2018, Mrs Y fell and spent some time in hospital. Upon her discharge from the hospital the Council carried out a reassessment of her needs and decided to temporarily increase her care to 22 hours per week. In doing so, the Council found, following an audit exercise, that Mrs Y had not had a financial assessment since her care agreement started in 2014. Therefore, as there was no financial assessment in place, the Council did not know whether Mrs Y should have been contributing to her care fees or not.
20. In April 2018, a Council finance officer and a social worker visited Mrs Y to carry out a financial assessment. Mrs X was also present. The officers explained to Mrs Y that she had not previously had a financial assessment and explained why she needed one. They explained everybody who received care needed an assessment to assess how much money they should contribute towards the care they receive. The finance officer completed the financial assessment and told Mrs Y what her maximum contribution was per week. They explained to Mrs Y that as she had not contributed to any of the care she had received since 2014, the Council may decide to backdate the charges.
21. The Council wrote to Mrs Y in September 2018 with a formal notification of the outcome of the financial assessment. The letter to Mrs Y said the Council had decided to backdate the financial assessment to December 2016. It said it had assessed Mrs Y’s weekly contributions from that date which would result in an invoice for approximately £7500.
22. Mrs X complained to the Council. Mrs X said despite being visited by a number of social workers since 2014, Mrs Y was not financially assessed until April 2018. Mrs X said that visit came as a surprise. Then she and Mrs Y had not heard from the Council until September 2018 when it sent Mrs Y the letter asking for £7500 in backdated charges. Mrs X said that letter had caused Mrs Y distress.
23. Mrs X chased the Council for a response to her complaint during October. The Council told Mrs X she would receive a response or a request to agree an extension by 2 November. Mrs X contacted the Council on 15 and 26 November as she had not received any contact about the complaint. She also complained Mrs Y was continuing to receive invoices when she thought this was on hold. In late December 2018 the Council agreed an extension with Mrs X. It did not formally respond to her complaint until January 2019.
24. The Council carried out an investigation into Mrs X’s complaint and wrote to her with the outcome. The Council said Mrs Y signed an agreement for her care in 2014. The Council said that agreement stated a financial assessment would be undertaken annually. However, one was never requested or completed. The Council said it carried out a financial assessment in April 2018 as soon as it found out she had not had one. Due to the introduction of the Care Act and its associated government guidance in 2016, the Council said it could not backdate any charges prior to December 2016. The Council said the backdated amount was £6700 following a recalculation.
25. The Council partially upheld Mrs X’s complaint because of the delay in completing the financial assessment which led to the large backdated charge. It said there was a further delay between April and September 2018 while the Council decided whether to apply the backdated charge. The Council said as Mrs Y had received the care, it was entitled to backdate those charges. It offered Mrs Y a payment of £200 to acknowledge the distress caused to her. The Council said it had implemented a new process to prevent it happening again.
26. Mrs X was unhappy with the Council’s response and complained to the Ombudsman.

My findings

27. The records show Mrs Y did sign an agreement for her domiciliary care in 2014. That agreement stated the Council would carry out a financial assessment and review this annually to assess Mrs Y’s contribution to the cost of the care. The Care Act states the Council must offer a financial assessment following a care needs assessment and provide clear information about the charges. The Council failed to carry out a financial assessment and is at fault.
28. The Council regularly assessed Mrs Y’s care needs between 2014 and 2018 however it did not at any time carry out the financial assessment or provide her with any information about her charges between 2014 and 2018. That was fault. This led to the large backdated invoice which caused Mrs Y distress and uncertainty. The records show the Council has now carried out appropriate financial assessments which clearly show what Mrs Y’s contribution is going forward.
29. The Council realised it had not carried out a financial assessment of Mrs Y in April 2018. It visited her to carry out a financial assessment and explain its error but then did not correspond further with her until September 2018, when it sent her the backdated invoice. That was fault. The delay caused Mrs Y further distress and frustration.
30. The Council decided to backdate Mrs Y’s care charges from December 2016, when it introduced its revised charging policy, which led to a large backdated invoice of £6700. Mrs Y received the care, and this was care which she was assessed as needing. The form Mrs Y signed in 2014 set out that she would be required to pay a contribution towards the care, once she was financially assessed. There is no evidence to suggest Mrs Y would have refused the care if the Council had carried out the financial assessment in 2014. The Council has now carried out a financial assessment and has calculated Mrs Y’s contribution. The Care Act allows councils to charge for care and there is no administrative fault in its decision to backdate the charges.
31. Mrs X complained to the Council in September 2018. The Council’s policy is to respond to complaints within 30 working days, however if that is not possible the investigating officer will contact the complainant to explain why and agree an extension. Despite Mrs X chasing the Council for a response, it did not contact Mrs X or agree an extension with Mrs X until late December 2018 and did not formally respond until January 2019. That was fault and the inadequate communication caused Mrs X uncertainty and frustration. The records show the Council failed to put a stop on Mrs Y’s invoice while it investigated her complaint and continued to send demands for payment. The Council says it put the backdated charge on hold but continued to send Mrs Y invoices for ongoing care. It failed to explain this to Mrs Y and this was fault. The faults caused Mrs Y further distress and uncertainty.
32. The Council acknowledged it was at fault for failing to carry out a financial assessment between 2014 and 2018. It acknowledged it was further at fault for its delay in raising the backdated invoice between April and September 2018. It has already apologised and offered £200 compensation. However, the large invoice has caused Mrs Y significant distress and the Council’s subsequent faults in its handling of the matter caused her further distress. I have therefore recommended a further remedy to acknowledge the injustice caused.

Agreed action

33. The Council agreed within one month of the final decision the Council to:
• pay Mrs Y £500 to acknowledge the distress caused by its failure to carry out a financial assessment between 2014 and 2018 resulting in a large and unexpected care bill. That figure includes the £200 originally offered by the Council. The Council is entitled to offset the payment against the outstanding debt if it chooses to do so.
• pay Mrs Y £200 to acknowledge the distress and frustration caused to her by its delay in raising the invoice and for its poor handling of her complaint. The Council is entitled to offset the payment against the outstanding debt if it chooses to do so.
• raise a new invoice and arrange an appropriate payment plan with Mrs Y to repay the outstanding backdated invoice. The Council should consider Mrs Y’s financial assessment in deciding how much she should repay each week or month.

Back to top

Final decision

34. I have completed my investigation. I found fault leading to injustice and the Council agreed with my recommendations to remedy that injustice.

Back to top

Investigator's decision on behalf of the Ombudsman