Summary: Mr X complained the Council charged his mother, Mrs Y, for domiciliary care she received between 2016 and 2019, despite telling them she would not be charged. The Council was not at fault. Mrs Y and Mr X were aware of the care charges and the Council invoiced and billed Mrs Y appropriately.

The complaint

1. Mr X complained the Council has charged his mother, Mrs Y, for domiciliary care she received between 2016 and 2019, despite telling them she would not be charged. He says he has power of attorney for his mother’s property and financial affairs, but the Council only told him of the accrued debt in Summer 2019. He wants the Council to cancel the charges and write off the accrued debt.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended). I have decided there are good reasons to investigate this complaint since 2016, as this is when Mr X says the Council told them both she would not be charged for her care. He says the Council only told him about the charges and the accrued debt in 2019.
4. 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.
5. 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

6. I read Mr X’s complaint and spoke with him about it on the phone.
7. I made enquiries of the Council and considered information it sent me.
8. Mr X and the Council had an opportunity to comment on the draft decision. I considered comments before making my final decision.

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What I found

Legal and administrative background

Assessment and provision of care and support

9. The Care Act 2014 provides the legal framework for the assessment and provision of care and support for adults assessed by councils as having eligible needs. The Act is supported by several statutory regulations and the Care and Support Statutory Guidance (the Guidance).
10. Councils have a duty to assess if a person has care and support needs, and if so, what they are.
11. If a person is assessed as having eligible needs, the Council must meet these needs. In some cases, the Council can charge the person for the cost of their care and support.

Charging for care

12. Councils decide whether to charge a person by completing a financial assessment. The Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance set out how councils must calculate the amount an individual should contribute to their care.
13. When a person lacks capacity, they may still be assessed as being able to contribute towards the cost of their care.

Lasting Power of Attorney

14. 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.

What happened

15. In 2016, Mrs Y lived on her own and had support from her son, Mr X, who lived nearby.
16. In August, a Council officer visited Mrs Y to assess her care and support needs. Mr X was also present at this meeting. The officer assessed Mrs Y as having eligible needs. The assessment said Mrs Y was able to understand and retain information, her memory was good, and she had mental capacity to make decisions relating to her care.
17. Council records show Mrs Y agreed to receive care and support. They said the officer explained to Mrs Y the financial implications of receiving care and provided her with written information. They recorded that Mrs Y understood this information. Mr X says the officer told them at this visit that Mrs Y would not have to pay for her care.
18. The Council arranged a home care package to meets Mrs Y’s needs. It wrote to Mrs Y about the charges for this care. The letter asked Mrs Y to contact the Council to arrange a visit for a financial assessment. It said if Mrs Y decided not to have a financial assessment or had savings over the current funding threshold of £23,250, it would charge her the full cost of her care. It said until the Council had completed the financial assessment, it would charge her an interim charge of £15 per week for her care. Once it had completed a financial assessment, it would backdate the assessed charge to the start of her care service.
19. In September and October 2016, the Council sent Mrs Y two invoices for £60 for each 4-week period of care. Mrs Y did not contact the Council to arrange a financial assessment, nor did she pay the invoices.
20. The Council continued to send Mrs Y monthly invoices. Mrs Y did not pay the invoices, so the Council sent Mrs Y a first reminder letter and a second, urgent reminder letter for each outstanding invoice.
21. In January 2017, Mrs Y made one payment towards her outstanding care charges.
22. In February 2017, Mr X registered as Lasting Power of Attorney for Mrs Y’s property and finances. He says he contacted the Council and asked it to send Mrs Y’s correspondence to him instead, but I have seen no evidence of this.
23. In March 2017, the Council’s finance team rang Mr X but there was no reply and no option to leave a voicemail.
24. The Council continued to send Mrs Y 4 weekly invoices, with follow up first and then urgent reminder letters. Mrs Y did not pay the invoices.
25. In June 2017, the Council wrote to Mrs Y. It said she had not contacted the Council to arrange a financial assessment and because of this, it had completed a "light touch" office-based assessment. It provided her with the details of this and asked her to contact the Council if she was not happy with the assessment or needed any further assistance.
26. Mrs Y did not contact the Council to arrange a financial assessment, nor did she pay the outstanding charges. The Council continued to send Mrs Y 4 weekly invoices, with follow ups and then urgent reminder letters.
27. The Council reviewed Mrs Y’s care and support plan in October 2017. The plan states Mrs Y and Mr X were both present during the review. The plan recorded Mrs Y had no difficulties understanding and retaining information. The plan recorded that Mrs Y’s care package was discussed and recorded Mrs Y was responsible for her financial affairs. The plan included the weekly costs of Mrs Y’s care package.
28. In October 2017, the Council wrote to Mrs Y again. It said it had written to her requesting contact so it could arrange a financial assessment, but it had not received a response. It asked Mrs Y to contact the Council within 14 days to arrange an assessment. It said if she did not make contact, she would be charged the full cost of her care which would be backdated to the start of her service.
29. Mrs Y did not contact the Council or pay the outstanding charges. In April 2018, the Council reviewed and increased Mrs Y’s weekly charge.
30. In September 2018, the Council reviewed Ms Y’s needs assessment and care and support plan. The updated needs assessment included that Mr X had power of attorney for Mrs Y’s finances. The updated care and support plan recorded Mrs Y had a diagnosis of dementia. She had difficulty understanding and retaining information, making decisions, or understanding their impact. It said due to her cognitive impairment, Mr X should be present at all assessments.
31. The Council continued to send Mrs Y 4 weekly invoices, with follow up first and urgent reminder letters. Mrs Y did not pay the invoices.
32. In August 2019, Mr X spoke with the Council. He said it was during this conversation that he first realised Mrs Y may be accruing a debt for care charges. He told the Council the officer had told him and Mrs Y in August 2016 that she did not have to pay for her care. He asked the Council to send correspondence about her care and care charges directly to him, as her power of attorney.
33. The Council wrote to Mr X. It said when its officer had visited him and Mrs Y in August 2016, it had provided written information about the financial implications of receiving care. It said it considered he was fully aware of the need to contribute. It asked him for financial information to allow it to review Mrs Y’s account and make sure the assessed contributions were correct. It said once it had completed its financial assessment, as power of attorney, he would need to pay any outstanding debt and arrange payment for the ongoing 4 weekly charges.
34. Mr X formally complained to the Council, but it did not uphold his complaint. It said it had provided Mr X and Mrs Y with information about the charges in August 2016. Since 2016 it had sent Mrs Y multiple invoices, reminders, and final notices. It said the care charges were still payable in line with the Council’s charging policy.
35. Mr X remained unhappy and brought his complaint to us.

Analysis

36. The Care Act 2014 gives councils the power to charge people for their care and support. In 2016, when the Council assessed Mrs Y’s needs and proposed arranging a care package, the records show it acted as we would expect. It told Mrs Y and Mr X about the financial implications of arranging care and provided them with written information about its charging policy.
37. The records show that at this time, Mrs Y had capacity to manage her finances and make decisions about her care. The Council asked Mrs Y to contact it to arrange a financial assessment. Mrs Y did not do this, nor did she pay any of the invoices sent to her in 2016. This was Mrs Y’s decision to make. The Council was not at fault.
38. The Council contacted Mrs Y again in June and October 2017, requesting she contact the Council to arrange a financial assessment. Mrs Y did not do this. The Council made appropriate efforts to try and arrange a financial assessment. The fact Mrs Y did not contact it to arrange this is not Council fault.
39. The Council acted appropriately by sending Mrs Y regular invoices between 2016 and 2019, as well as first and urgent reminder letters. On balance I find Mr X was aware of the letters and the content. Mr X said he thought these letters were for information only, however the invoices clearly set out what Mrs Y needed to pay and how to make payment. Mrs Y made a payment towards her care charges in January 2017, which indicates she was aware she was being charged for her care. There is no evidence Mr X or Mrs Y queried the invoices with the Council before Summer 2019.
40. There is no evidence Mr X asked the Council to send correspondence relating to Mrs Y’s care and support to him in 2017, after he was granted power of attorney for Mrs Y’s financial affairs. The only record of Mr X requesting this is in August 2019. The Council is not at fault for continuing to send invoices and correspondence directly to Mrs Y before August 2019.

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Final decision

41. I have completed my investigation. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman