London Borough of Tower Hamlets (19 008 533)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 10 Nov 2020

The Ombudsman's final decision:

Summary: Ms X complains the Council did not explain her father’s care charges or take account of his mental impairment. This has led to a very large debt. The Ombudsman finds no fault causing injustice regarding the Council’s handling of the financial assessment and advice regarding Mr X’s contribution to care charges.

The complaint

  1. The complainant, whom I shall refer to as Ms X complains about the way the Council dealt with her father’s care charges. She says:
    • No-one properly explained about charging
    • Her father lacks mental capacity to consent to the charge
    • The Council took too long to deal with matters
  2. Ms X says this caused them avoidable distress. She wants the Council to reconsider the charge or negotiate an affordable repayment plan.

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The Ombudsman’s role and powers

  1. 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)
  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)

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How I considered this complaint

  1. I have considered the complaint and the correspondence provided by Ms X. I have made enquiries of the Council and considered the comments and documents the Council provided. I considered Ms X and the Council’s comments on my draft decision before making a final decision.

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What I found

Law and guidance

  1. Councils can make charges for care and support services they provide or arrange. 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. If a person incurs expenses directly related to any disability he or she has, the Council should take that into account when assessing his or her finances. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)
  2. The Council made the decision to make charges for community adult social care following consultation with residents in 2016. It introduced its policy regarding care charges in October 2017.
  3. The Council explains that before implementing the decision, it sent a letter and guidance leaflets to people who received home and day care services. It advised customers that it would need to carry out financial assessments where it did not have enough information already, to work out the contribution for care charges.
  4. The Council t wrote to Mr X in February 2017. The Council explained it intended to protect people on low incomes by assessing their income, capital and expenses. Customers would only be expected to pay if they had enough money left over after living expenses.
  5. In June 2017 the Council wrote to Mr X to say that it had enough information to assess his charges for care. It advised him that he had nothing to pay based on the information it had. The Council asked Mr X to check the information, confirm if it was correct and sign and return a form it sent him.
  6. However, in October 2017 the Council advised Mr X that it made an error in its assessment of his contribution. It apologised for this and advised that his contribution was £104 per week from October 2017 and explained its calculation.
  7. In late November 2017 Ms X asked the Council why it had not taken into account certain expenses such as gas and electricity and payments for overnight care.
  8. In April 2018 the Council replied, apologising for its delay. It asked Ms X for further information regarding the expenses she had referred to. Ms X replied it may take time to get the information due to her father’s dementia.
  9. In September 2018 the Council reassessed Mr X’s needs. Ms X was consulted about the assessment but did not attend the meeting. Instead she arranged for Mrs X, Mr X’s former partner to attend. The Council’s reassessment document shows the social worker completing it stated that Mr X self directed the assessment, but had Ms X as his advocate. In response to the question, “Have you informed the person that they may be charged for services and that their charges may change/ may increase?”, the social worker replied “Mr X has been previously financially assessed. He is aware that he will be assessed annually and may be charged for his service.”
  10. In October 2018 the Council advised Ms X that it did not accept the expenses she had asked to be considered as disability related expenses (DRE) in Mr X’s financial assessment. It explained the reasons why. Mr X’s contribution remined at £104 per week.
  11. Ms X asked what it could accept as DRE. She said Mr X now had a significant amount to pay. She asked for a reduction or a more manageable repayment.
  12. In January 2019 Ms X complained that the Council had not explained to Mr X that he would be charged a contribution and how this worked. She did not consider the charges were fair. She said the Council had not properly taken account of his mobility scooter which used a large amount of his disability living allowance. She said Mr X was stressed by the Council’s demands to pay over £7000 and could not afford repayments of £800 per month. In her view the Council was not taking account of the Care Act 2014 because it had a general duty to promote his wellbeing. In addition, she felt the Council should have appointed an independent advocate to support Mr X and explain the charging process, because Ms X was not able to take on the responsibility. In her view Mrs X did not have the capacity to understand the process and assist Mr X.
  13. The Council replied that it had assessed Mr X’s contributions according to its policy which complied with the Care Act 2014. It explained the calculation of the £104 per week contribution. The Council noted Mrs X had attended the assessment when Ms X had been unable to. It noted Ms X said Mrs X lacked understanding but did not agree with this. It had considered, but not accepted Ms X’s request for DRE. The Council said that it had offered a payment arrangement when Mrs X called but had not received a reply.
  14. Ms X complained further because she was dissatisfied with the Council’s response. The Council responded to Ms X’s questions and explained that its social worker considered Mr X was actively and fully engaged in the assessment. She said she advised him he would be financially assessed and may need to make contributions. The social worker considered he had capacity to make decisions regarding his care and support needs. However, the Council offered to carry out a further assessment.
  15. In May 2019 Ms X met Council officers to discuss her complaint. The Council said it considered it had acted properly. It said it had interviewed the social worker. It was her judgement that at the time of the assessment Mr X had capacity, and there was no indication that a Mental Capacity Assessment was needed. Mrs X attended the assessment and when the appointment was made Ms X considered Mrs X was satisfactory advocate. Ms X maintained that Mr X did not have capacity and she said she would apply for a Lasting Power of Attorney (LPA). This enables a trusted person to make decisions on another’s behalf. The Council advised Ms X that the person on whose behalf the LPA was sought must have mental capacity at the time of the application. The Council said its debt recovery panel would consider holding recovery of the arrears while Ms X applied for an LPA. The Council suggested Ms X should do her best to set up payments of the current contributions. The Council accepted it should have offered another assessment of Mr X when Ms X first raised the matter.
  16. In June 2019 the Council carried out a Mental Capacity Assessment of Mr X for making decisions about managing his finances. Ms X and an independent advocate attended the assessment. The Council’s assessment did not consider Mr X lacked capacity to manage his finances. The Council advised Ms X of this and the Debt recovery panel’s decision that the Council should pursue recovery of the arrears.

Analysis

  1. I do not consider there is evidence that the Council did not explain the care contributions to Mr X. The Council sent information to Mr X regarding this in February 2017 and October 2017, and it appears it was discussed at the assessments. The Council explained the contributions, the calculation and DRE when Ms X raised this. I have not found fault here. The Council appears to have considered the Care Act 2014, guidance and adhered to its own policy when assessing the charges.
  2. Regarding Ms X’s complaint that Mr X lacked capacity, the Council explained its view that Mr X engaged with the assessment and that he had capacity. It carried later carried out an MCA and did not find Mr X lacked capacity to manage his own finances. I have not found fault here.
  3. Ms X complained the Council took too long to deal with matters. I have seen evidence that the Council delayed responses, particularly between November 2017 and April 2018. This is fault. Ms X says this led to unmanageable arrears. However, I do not consider the delays led to the arrears. It appears the Council explained the need to make ongoing payments and make an arrangement for the arrears at an early stage and in response to Ms X’s contacts and complaints. The Council offered repayment arrangements, but Mr X has not made payments or agreed an arrangement. Therefore, while there was some delay by the Council, I do not consider this caused injustice to Mr X.
  4. The Council says it is willing to make an arrangement with Mr X regarding the arrears. However, it will need to see Mr X’s bank statements to show how his income has been spent.

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Final decision

  1. I have not found fault causing injustice by the Council. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman

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