Summary: Mr X complained about the way the Council handled the costs of care provided to his father. He says an unexpected bill caused his father worry and stress. The Council was at fault for a delay in carrying out a financial assessment. It has already apologised and should reduce the debt to remedy the injustice caused.

The complaint

1. Mr X complained about the costs of care provided to his father, Mr F, between September 2016 and February 2017. In particular he says the Council:
1. Did not tell the family Mr F had to contribute to the costs of his care;
2. Did not discuss with the family alternative options to care in a care home;
3. Delayed in carrying out a financial assessment to determine the amount Mr F had to contribute to the cost of his care;
4. Delayed sending an invoice for Mr F’s contribution: and
5. Pursued Mr F for outstanding costs without regard for his poor health.
2. Mr X says the unexpected bill in November 2018 caused worry and stress for the family, and the Council’s pursuing of the outstanding costs caused avoidable distress to Mr F at a crucial point in his recovery from illness.

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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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. We would not usually investigate events that happened more than 12 months before the complaint to us. In this case the complaint was triggered by the Council sending an invoice in November 2018, following which Mr X complained to the Council. There was no undue delay between the end of the Council’s complaints process and the complaint to us. In addition, there are sufficient records to enable me to make a robust and defensible decision. For these reasons I exercised discretion to investigate from September 2016 onwards.
7. 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

8. I spoke to Mr X and considered the information he provided.
9. I considered the Council’s response to my enquiries.
10. I considered relevant law and guidance, as set out below, and our guidance on remedies.
11. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Assessment of needs

12. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
13. Where the adult has eligible needs, the council should prepare a care and support plan setting out how the person’s needs can be met.

Financial assessment

14. Councils can make charges for care and support services they provide or arrange. They must assess a person’s finances to decide what contribution they should make.
15. The rules state that people who have capital in excess of the upper capital limit (£23,250) are expected to pay for the full cost of their care. Where they have less than this they only have to pay a contribution towards the costs of their care.
16. Where a person received respite care, the council can assess the contribution for that care as though they live in a care home permanently, although it should take into account housing costs when calculating the person’s assessed contribution. The charges should not reduce the person’s income below the personal expenses allowance (PEA). This leaves the person with a much lower income because most of their daily expenses are covered by the care home fees.

Mental capacity

17. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision. An assessment of someone’s capacity is specific to the decision to be made at a particular time.
18. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.

What happened

19. Mr F needed care when he became unwell in September 2016. The Council arranged for him to move to a care home where he lived until February 2017 when he was well enough to return home.

Initial information and advice

20. Mr X says the Council did not tell Mr F he would need to contribute to the costs of this care and did not offer any alternative to the care home.
21. The Council says it gave Mr X information verbally about the costs of care whilst he was in hospital. The record it provided shows Mr X said he believed Mr F’s savings were “less than the council threshold” but does not provide any detail about the information given at that point. The Council sent written information about the cost of care home stays to Mr X on 2 September 2016, Mr X responded to that email, although he did not comment on the information sent. The Council then sent Mr X a form to provide information for a financial assessment. Mr X did not return a completed form.
22. At that point, the Council decided Mr F did not have capacity to make decisions about his care after he left hospital. Therefore, it made a best interests’ decision. During the decision-making process it consulted Mr X and considered the following options for Mr F:
• Return home with a care and support package;
• Placement in a non-specialist setting; or
• Placement in a residential setting with specialist knowledge of Mr F’s condition.

The medical advice was that it was in Mr F’s best interests to move to a specialist placement as this would give him the best chance of being able to return home in future. The Council made a best interests’ decision to that effect.

Financial assessment

23. The Council says Mr X did not return a completed financial assessment form but the social worker did not follow this up. The Council did not identify the omission until June 2018, at which point it sent a fresh form to Mr F, who completed and returned it. The completed form was then sent to the team who carry out financial assessments.
24. The Council has reviewed and revised its process and charging policy to avoid a recurrence of this fault. It says its finance team are now alerted when a package of care is agreed and entered onto its computer system.
25. A Council officer visited Mr F in early September 2018 to carry out a financial assessment. It sent a letter in mid-September to confirm he would need to pay a contribution of £106.18 per week for his stay in the care home. It sent a further letter in mid-October 2018 confirming the total amount Mr X needed to pay. It sent an invoice in mid-November 2018.

Recovering the contribution to the care costs

26. Mr X did not pay the contribution requested and the Council send a reminder in February 2019. I understand that following this a Council officer visited him to discuss his reasons for not paying. Around this time, Mr X complained and the Council said it would consider repayment by instalments. After Mr X complained to us, the Council agreed to suspend all action to recover these costs until our investigation was complete.

My findings

Initial information and advice

27. Mr X says the Council did not tell him or his father about the likely costs of care in the care home. He says they understood there would be no costs to pay because Mr F’s capital was below the upper limit.
28. The Council says it gave the information verbally whilst Mr F was in hospital. Its record does not show what information was given but does indicate there was some discussion about the threshold below which the Council can assist with the costs. However, I have seen emails sent in early September 2016 that show the Council did provide information about care home costs. This was just before Mr F moved to the care home. Therefore, I consider the Council did provide sufficient information about the costs in September 2016 and it was not at fault.
29. The Council has provided records to show it considered three possible options for Mr F’s care and that it consulted Mr X before making a best interests’ decision that Mr F should move to a specific care home. Based on those records, I am satisfied the Council did consider alternatives to the care home and there was no fault in the way it made the best interests’ decision. I cannot comment on a Council’s decision that was made without fault.

Financial assessment

30. The Council sent Mr X a form to complete to enable it to carry out a financial assessment. Mr X did not return a completed form and the Council failed to follow this up for almost two years. The failure to follow this up was fault.
31. This fault led to a delay in completing the financial assessment, which meant Mr X and his father were uncertain about the actual contribution Mr F would need to pay towards the care home costs.
32. Mr F received the care and the Council is entitled to invoice him for his assessed contribution to the cost of that care. It apologised for its delay and in response to my enquiries it agreed to reduce the outstanding costs by £335.96 to £2,000. It has also said it would consider repayment by instalments. I consider this is an appropriate remedy for the stress and worry caused when the Council sent its invoice in November 2018.
33. There was no undue delay in carrying out the financial assessment and telling Mr X how much he needed to pay once the Council had received the completed form in June 2018. The documents show the Council took into account Mr F’s housing costs and there is no evidence of fault in the way it calculated his contribution to his care costs.

Recovering the contribution to the care costs

34. As stated above, the Council was entitled to seek recovery of Mr F’s contribution to his care costs. It sent an invoice, then a reminder and finally visited Mr X to discuss the situation. Following Mr X’s complaint, it also offered a repayment arrangement. Although Mr F remains unwell, the Council’s actions were appropriate and it was not at fault. It agreed to suspend any action to recover the outstanding amount whilst my investigation was ongoing.

Agreed action

35. The Council will, within one month of the date of the final decision, issue an amended invoice in the sum of £2,000.00 and confirm its offer to accept repayment by instalments.

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Final decision

36. I have completed my investigation. I found fault leading to personal injustice. I have recommended action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman