Summary: The Council’s response to Ms X’s complaint was inadequate but there is no evidence that caused material injustice. There is insufficient evidence that the Council’s actions in seeking to recover the debt incurred by Ms X’s mother in law were fault.

The complaint

1. Ms X (as I shall call the complainant) says the Council is making unreasonable final demands for payment for care for her late mother in law Mrs A. She says some of the payments have been made. She also says Mrs A should have received NHS funding.

Back to top

The Ombudsman’s role and powers

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

Back to top

How I considered this complaint

3. I considered the information provided by the Council and by Ms X. Both Ms X and the Council had an opportunity to comment on an earlier version of this statement, and I considered their comments before I reached a final decision.

Back to top

What I found

Relevant law and guidance

4. 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)
5. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25%. The Council can take a person’s capital and savings into account subject to certain conditions (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)
6. “NHS continuing healthcare (NHS CHC) is a package of care arranged and funded solely by the health service in England for a person aged 18 or over to meet physical or mental health needs that have arisen because of disability, accident, or illness.” (NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012).
7. The NHS can provide continuing healthcare at home or in a care/nursing home. The NHS is responsible for meeting the full cost of care in a care home for residents whose primary need for being in care is health-based. The 2012 Regulations say the NHS should assess for NHS Continuing Healthcare where it appears somebody may be in need of such care.
8. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA),” which replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.
9. There are two types of LPA:

Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account;

Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

What happened

10. Mrs A began to receive a domiciliary care service from the Council in December 2016.
11. The Council sent a financial assessment form for Mrs A to complete. Ms X competed and returned the form for her in January 2017. Ms X told the Council she was managing Mrs A’s finances for her. She wrote on the financial assessment form that she was ‘in the process’ of arranging to hold Power of Attorney for Mrs A.
12. Ms X queried the amount of contribution Mrs X was assessed as paying towards the cost of her care. The Council’s records show an officer contacted Ms X on 1 February. The Council says “confusion appears to have arisen as there had been a duplicate account set up for (Mrs A) with a different reference number. It was clarified to (Ms X) on 1st February 2017 that (N******) was the correct account, and the assessed contribution at that time was £60.05 per week”.
13. The Council says when it sent out the annual uplift letter in April 2017, Ms X contacted it to ask for correspondence to be sent to her address instead.
14. The Council completed a review of Mrs A’s finances with Ms X in April 2018 by telephone. Ms X queried Mrs A’s financial contribution in July 2018. The Council says it contacted her again by telephone and clarified the information it had was correct, and that the assessed contribution was correct.
15. The Council’s records show that on three occasions in 2018, twice in August and once in October, the payments which the Council tried to take under the direct debit arrangements Ms X had set up failed to be paid. The Council reinstated the invoices onto the account.
16. No further payments were made between November 2018 and April 2019. The Council says it was notified on 1 April 2019 that the care package had ceased on 15 February as Mrs A was now in a residential placement. The Council says it generated a credit for the overcharges and closed that account.
17. The Council’s records show telephone conversations between Ms X and an officer in the accounts section in February 2019. Ms X insisted that the payments which the Council said were outstanding had been made but said the bank account had now been closed. She said she did not have power of attorney for Mrs A so was finding it difficult to get access to statements to provide proof. The Council’s records say, “I told her since she wasn’t offering support i would need to report a safeguarding issue if no NOK taking care of the finances. (Ms X) advised she does have Advocate. I stopped there as we were just going round in circles and advised someone will be in touch soon for further details”.
18. The Council sent a statement of the account to Ms X on 18 April. Ms X asked for an explanation of the payments made. She agreed there were two payments outstanding but disputed other payments. She said she had closed the previous bank account and opened another, from which she was making payments, but not through a direct debit arrangement.
19. The Council continued to issue invoices, and also started to issue final notices for payment of the outstanding amounts. In July 2019 Ms X telephoned the Council complaining that it had incorrectly taken three payments out of Mrs A’s bank account and that she had therefore been charged twice for some months. The Council’s record says “This is an invoicing long ongoing issue regarding Duplicate invoices, 3 payments taken out of (Mrs A)’s bank account”.
20. The Council’s complaints officer responded to Ms X’s compliant. She said, “[the debt recovery team manager] has advised that the invoices referred to relate to a previous period of care. [She] has provided the enclosed breakdown to evidence the monies owed. [She] has advised that the invoices with payments below are allocated to each other, the invoices that say ‘Re-instated invoice’ are invoices that we attempted to gain payment via Direct Debit but the Direct Debit failed. The invoices have then been put back on account for payment to be made.”

21. Ms X complained to the Ombudsman. An officer from the Council’s Debt team telephoned Ms X to try and reconcile the payments made and advise of payments due. She noted, “Called (Ms X) as requested to discuss and reconcile payments. (Ms X) was extremely frustrated. I tried to start at the last paid invoice to work back, however (Ms X) had visitors arrive and advised she needed to terminate the call.”
22. Ms X refused to speak to officers from the Debt Team again. She emailed to say the Council did not respect Mrs A’s human rights or the fact she had a terminal illness.
23. The Council says Ms X has not provided the evidence she says exists to show the payments have been made.
24. Mrs A sadly died in March 2020.
25. Ms X has since sent me more detail of the discrepancies she says has discovered in the invoicing but has not obtained all the bank statements she says will provide evidence. She also says the Council did not take into account the amount Mrs X liked to spend on presents for her children and grandchildren.

Analysis

26. The Council has provided its records of the times it sought to take payments from the nominated bank accounts but was unable to do so.
27. Ms X says the Council has taken three payments which were not due but has not been able to provide the evidence to support her statement. Although she has now raised concerns about more discrepancies she is still unable to provide the bank statements to support her arguments. She would not discuss the matter or go through the accounts with officers from the Council’s Debt Team.
28. This was understandably a distressing matter for Ms X who had acted in support of her mother in law. However, there is no evidence the Council was wrong to seek payments which were overdue.
29. The Council’s response to Ms X’s complaint in July was unhelpfully short and uninformative. The Council could have taken further steps to explain to Ms X or offer a meeting, for example, to go through the disputed accounts. However, given Ms X’s previous response to attempts to reconcile the accounts over the telephone and her refusal to talk to the Debt Team again, no injustice was caused to her.

Back to top

Final decision

30. There is no evidence of fault causing injustice.

Back to top

Investigator's decision on behalf of the Ombudsman