Summary: The Council failed to complete a financial assessment, for a residential care placement, in 2015. It initially decided to backdate the complainant’s charges, but later agreed to waive them to the date it notified the complainant of its error. However, it should have provided the complainant with a copy of the financial breakdown.

The complaint

1. The complainant, to whom I will refer as Mr B, is represented by his mother, to whom I will refer as Mrs H.
2. Mr B complains the Council:

• backdated charges for his contribution to his care costs, despite them having accrued because of the Council’s error;
• did not provide him with the outcome of its financial assessment, to allow him to challenge any potential inaccuracies.

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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 reviewed Mrs H’s correspondence with the Council, and copies of the outcome of Mr B’s financial assessment.
6. I also sent a draft copy of this decision to each party for their comments.

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What I found

7. Mr B has learning difficulties and mental health problems. He has been resident in a care home for a number of years.
8. In 2015, the Council began a financial assessment to determine what, if anything, he should be contributing to his care fees. It gathered information about Mr B’s financial situation, but due to an administrative error it did not complete the assessment. As a result, the Council fully funded Mr B’s placement.
9. In 2018, the Council realised its error. It sent a letter to Mrs H on 13 December, explaining Mr B was due to contribute to his care, and should have been since 2015. It explained Mr B needed to pay approximately £100 per week towards his care. It also asked Mr B to pay backdated charges of approximately £8000.
10. On 15 March 2019, Mrs H submitted a complaint to the Council about this. The Council replied on 11 April. It said Mrs H had signed to agree for both herself and Mr B to be financially assessed, and to receive a copy of the Council’s charging policy, in May 2015. However, the Council explained the assessment had not been completed, through its own error. It agreed to waive the backdated charges from May 2015 to April 2018, approximately £5300 of the total backdated invoice. Dissatisfied with this, Mrs H emailed the Council.
11. The Council replied on 18 April. It repeated it had agreed to waive a proportion of the charges, but said Mrs H had been aware in 2015 that Mr B’s placement was chargeable. The Council explained the Personal Expense Allowance (PEA) of £24.90 per week was set by the Government, and that service users are expected to use their income from benefits and other sources to contribute towards their care fees.
12. Mrs H replied on 18 April. She said she had not received any information about charging arrangements in 2015, nor had she or Mr B had any opportunity to comment on the financial assessment. She also complained that Mr B was not in a position to pay the backdated charges, even without the element the Council had waived.
13. On 7 May, the Council responded. It asked Mrs H to make arrangements to pay both the remaining backdated charge, and Mr B’s ongoing weekly contribution, and repeated its decision to waive part of the charges was because of its administrative error.
14. Mrs H replied on 7 May. She explained she had not yet made payment arrangements because she was still dissatisfied with the Council’s position. She said the Council had still not explained what elements of Mr B’s income should be disregarded from the Council’s assessment, and questioned its legal authority to collect backdated charges which accrued because of its own error.
15. Having heard nothing further from the Council, Mrs H referred her complaint to the Ombudsman on 24 May.
16. On 4 June, the Council replied to Mrs H’s email of 7 May. It said, upon review, it would waive a further proportion of the backdated charges, up to 12 December 2018. It asked her again to make arrangements to pay Mr B’s ongoing contribution.
17. The Council also explained the PEA level is set by the Government. It said if Mrs H considered Mr B needed additional support, she would need to approach the Council’s adult social care department.
18. Mrs H replied on 6 June. She considered the Council had now acknowledged it did not have the legal authority to backdate Mr B’s care charges. However, she said she had not received the Council’s letter dated 13 December until 21 January, and considered it should waive the charges until this date. She also said Mr B had moved out of his previous accommodation on 20 April, and did not move into his new accommodation until 6 May, and that there should be no charges to pay between those two dates.
19. The Council replied on 6 June. It said its agreement to waive the further period of charges was a goodwill gesture, and not because of a lack of legal authority. The Council forwarded Mrs H a copy of a form, showing her signature and the date of 18 May 2015, agreeing for Mr B to be financially assessed and agreeing the Council’s charging policy had been explained to her.
20. The Council said its letter was dated 13 December, and it could not be held responsible if Royal Mail had not delivered it promptly. It also said Mrs H had received three invoices before the letter of 13 December, and so should have been aware by then a contribution was due. The Council refused to waive any further charges.

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Legislative background

Charging for permanent residential care

21. 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”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
22. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
23. The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.
24. For a person in residential care, authorities must disregard a Personal Expenses Allowance of £24.90 per week from their income. There are a number of other categories of income and capital which authorities must disregard, including a pension credit sum and the mobility component of the Disability Living Allowance (DLA).
25. If a person’s income changes, they may require a financial re-assessment to determine whether their contribution should also change.

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Analysis

26. The Council began a financial assessment of Mr B in 2015. For reasons which are unclear, this was left uncompleted at the time. As a result, the Council did not charge Mr B anything for his placement for more than three years.
27. In late 2018, the Council notified Mrs H of its error. It originally decided to backdate Mr B’s charge to the beginning of his placement, but after a considerable length of correspondence with Mrs H, it agreed to waive the charges until December 2018.
28. Mrs H is of the view the Council had no legal authority to ask Mr B to pay the backdated charges, because they had accrued as a result of its own error.
29. This is not correct – there is no legal impediment to the Council collecting backdated charges, even if it is its own fault. However, the Ombudsman would expect the Council to recognise the injustice caused by its administrative error, such as the distress as suddenly receiving a large and unexpected bill. The Ombudsman would also expect the Council to take into account the service user’s ability to pay.
30. So, had it not already done so, I would likely recommend the Council waive the backdated charges, at least in part.
31. Mrs H believes the Council should waive a further proportion of the charge, to 21 January, when she says she received the Council’s letter. The Council says it sent the letter on 13 December and is not responsible if delivery was delayed; and in any event, Mrs H was already aware that a contribution was payable before 13 December.
32. I unfortunately cannot say exactly when the Council posted its letter, when Mrs H received it, and what caused the delay if there was one. However, I note there was some contact between Mrs H and the Council about this even before she had received the letter. So, on balance, I am satisfied that waiving the charges to 12 December is an adequate remedy.
33. Mrs H has asked the Council to consider the time and trouble she went to pursuing the matter, and the stress it caused her and Mr B. I can see Mrs H went to considerable effort pursuing the Council to resolve this matter, which is an injustice because it also arose from the Council’s original fault.
34. However, I cannot overlook that Mr B has, ultimately, benefitted significantly from this fault; he has received a free service for more than three and a half years, and saved approximately £8000 as a result. I consider this is sufficient to offset the injustice caused by the Council’s handling of the matter, so I will not recommend a further financial remedy for time and trouble or distress here.
35. Mrs H also complains the Council has not provided a copy of the outcome of Mr B’s financial assessment.
36. I have received two relevant documents from the Council, showing the breakdown of Mr B’s weekly charge from April 2018 to April 2019, and April 2019 onwards respectively. These explain how Mr B’s income has been considered, what has been disregarded and what he is required to contribute.
37. I understand Mrs H feels the PEA of £24.90 is insufficient for Mr B’s needs. But as the Council says, the PEA is set nationally by the Government and it has no discretion to increase it. And if Mrs H feels Mr B has additional needs, not being met by his current care package, she needs to ask for it to be reviewed. This is not something which can addressed simply through an adjustment in his financial assessment.
38. However, I do consider it fault the Council did not provide Mr B with a copy of the breakdown. This should, of course, have happened in 2015 originally, but accepting the Council’s error, it should have sent a copy of the breakdown to Mrs H as soon as it notified her there was a contribution to pay. Failing to do so meant Mr B was unable to challenge any potential errors in the Council’s calculations.
39. This said, I have provided Mrs H with a copy of the 2018/19 and 2019 documents, and so there is nothing further for the Council to do in this respect. Mrs H may now review the documents and challenge the assessment if she feels it appropriate.
40. Mrs H also says there was a gap in Mr B’s package from 20 April to 6 May 2019, for when there should be no charge. The Council has said its records show a gap only from 27 April to 1 May. It says this period will form part of an invoice which is shortly to be sent to Mrs H.
41. I cannot resolve this dispute on the evidence available to me. However, if Mrs H considers there is a larger gap in Mr B’s care than recognised by the Council, it is open to her to provide it with evidence to support this once she receives the invoice.
42. In summary, I find fault causing injustice in this complaint. But I consider the injustice has already been remedied by the Council’s actions, and so I make no recommendations.

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Final decision

43. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman