Summary: There was fault by the Council. It took too long to deal with Mr B’s correspondence about his father’s contribution to charge for his home care. The Council also was not clear that it was assessing or reviewing Mrs B’s needs as carer and there is no evidence it took her views into account. The Council has apologised for not responding to Mr B in good time. It should also review its assessment of Mrs B’s needs as carer.

The complaint

1. Mr B complains about how the Council has handled arrangements for his disabled father’s home care. Mr B says the Council:
• wrongly assessed how much his father should pay towards his care;
• did not properly deal with his correspondence with it nor his appeal against charges made.
• failed to provide “access to financial information and advice which is impartial and independent of a local authority” as required by the care and statutory support guidance;
• has not properly completed a carers assessment or reviewed this; and
• did not complete a continuing health care (CHC) assessment;
2. Mr B says that as a result of this his family have accrued arrears of care fees amounting to around £7,000.

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What I have investigated

3. Usually, 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). Mr B was pursuing the key issues with the Council’s and did not get a comprehensive response until May 2019. He then made a formal complaint, as required before bringing the complaint to the Ombudsman. Mr B took longer than 12 months to bring the complaint to us, but he had good reasons. I have investigated the Council’s actions from 2017 to date.
4. I have not investigated the complaint about the CHC and I have set out the reasons for that below.

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The Ombudsman’s role and powers

5. 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)
6. 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

7. I considered the information provided by Mr B and the Council, including copy correspondence, file notes and assessments. I have also considered the law and guidance set out below. Both parties have had the opportunity to comment on a draft of this statement. I have considered Mr B’s comments on the draft statement before reaching my final decision.

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What I found

The law and guidance

8. 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)
9. 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)
10. The Care and Support Statutory Guidance 2014 sets out how the Council should approach assessment of a carer’s needs. It says:
• Where an individual provides or intends to provide care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. Carers’ assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
• Carers’ assessments must seek to establish not only the carer’s needs for support, but also the sustainability of the caring role itself, which includes both the practical and emotional support the carer provides to the adult. Therefore, where the local authority is carrying out a carer’s assessment, it must include in its assessment a consideration of the carer’s potential future needs for support. Factored into this must be a consideration of whether the carer is, and will continue to be, able and willing to care for the adult needing care. Where appropriate these views should be sought in a separate conversation independent from the adult’s needs assessment.
• The carer’s assessment must also consider the outcomes that the carer wants to achieve in their daily life, their activities beyond their caring responsibilities, and the impact of caring upon those activities.
11. Where a person has been detained in hospital under the Mental Health Act 1983, the Council cannot charge for some services provided once they are discharged. Not all services will be free; only those that are intended to meet a need arising from the mental health, or intended to stop their mental health from getting worse such that they would need to go back to hospital. (Mental Health Act 1983, section 117)
12. The Council and the NHS have a joint duty to provide aftercare services. If a person moves or is discharged to a different area, the Council of the area in which the person lived before he was detained, retains responsibility for aftercare provided under section 117. (Care and support statutory guidance, paragraph 19.62-19.64)

What happened

13. Mr B lives with his wife and small children. His father, Mr K, is disabled and frail and also has mental illness. He has been admitted to hospital several times to treat his physical and mental health. In March 2017, Mr K was discharged from hospital. He had been detained under the Mental Health Act 1983 and on discharge he could not manage in his usual rented flat. Mr K went to live with Mr B and his family, in the neighbouring London borough.
14. The Council assessed his needs. The assessment says that the council for the area in which Mr K had been living prior to this stay in hospital, had been funding care services for Mr K. The assessment mentions that Mr B’s wife helped with the cooking and cleaning and making sure Mr K eats and takes his medication. However, he needed help with his personal hygiene and care, and with leaving the house. The Council decided that Mr K needed two 30-minute calls each day to help with his personal care, and some further support each week to go out in the community or attend medical appointments.
15. On 14 June 2017, the Council told Mr B that it would need to assess how much his father would pay towards the care. It wrote to Mr B explaining what information it would take into account. The Council visited Mr B and considered his financial information. Its assessment meant that Mr K would need to pay £91 per week towards his care costs. The Council set out in a letter dated 3 July what information it had used to arrive at the figure.
16. Mr B contacted the Council to ask why his father needs to pay, and to say that in actual fact, Mr B himself will be paying this and cannot afford it. Mr B wrote a letter in July 2017 saying that the Council has not taken into account how ill his father is and that he needs this care. In terms of the financial information, Mr B points out that Mr K is renting a flat (at £6 per week after housing benefit) which he cannot live in because he is too ill; that they have had to buy some specialist equipment; and the cost of transport to Mr K’s medical appointments. Getting no reply, Mr B wrote again in August 2017, making it clear he wanted to appeal the Council’s decision on the care charges. Mr B sent further emails asking for the Council’s response.
17. Following this, the Council’s finance team sent invoices for the care fees and letters to notify Mr B of the annual increase in charges. Its social work team also visited the family to review Mr K’s care needs.
18. The Council wrote to Mr B specifically about the fees again in May 2019. Its letter refers to Mr B’s previous correspondence and apologises for not responding sooner. It also acknowledges that large arrears may have accrued partly due to Mr B awaiting the Council’s answers to his questions about his father’s contribution to home care costs. The Council’s letter explains in detail how it has calculated Mr K’s contribution. No payments had been made however, and the arrears stood at over £7,000.
19. The Council’s files show that it knew that Mr K rented a flat elsewhere at its first financial assessment in 2017. However, in May 2019, and in response to the Council’s letter to him, Mr B gave the Council evidence of his father’s bills for the flat. The Council revised the financial assessment and backdated this, but as Mr K only paid £6 per week rent it did not make a significant difference to the weekly contribution to home care.
20. Mr B also gave the Council details of his father’s living expenses. The Council considered these but decided that it did not alter their assessment of how much Mr K should pay for his home care. It wrote to let Mr B know this. The Council and Mr B agreed a payment plan to meet the ongoing costs and to reduce the arrears.
21. Mr K terminated his tenancy. He had maintained this as it was important to his mental health that he could return there, but it became clear that he needed too much care from his son and daughter-in-law.
22. Mr K’s benefit income changed in September 2019 and the Council reassessed his contribution accordingly. This saw the weekly cost to Mr K reduce from £100.80 to £40.90. Again, the Council’s letter set out how it had calculated the new contribution.
23. The Council has explained how it decided that Mr K was not entitled to free section 117 mental health aftercare. It says that although Mr K was detained under the Mental Health Act, assessments done on his discharge from hospital did not identify that he needed services to support his mental health. The home care services he receives are to meet his increasing physical needs and as such Mr K must contribute to the cost.
24. In addition, Mr K’s former council would be responsible for arranging aftercare alongside the NHS. The former council referred Mr K to the London Borough of Newham when he went to live there, but did not indicate that it was funding aftercare services under the Mental Health Act.
25. The Council says that it gave Mr B details of an independent organisation that could advise him on the charges and I note its contact details are on the assessment documents signed by Mr K and Mr B, and on the Council’s website.
26. Mr B also complained that Mrs B had received a copy of a carers assessment said to be done in 2017, but does not remember this taking place. The Council says it has reviewed Mrs B’s needs as carer when it reviewed whether Mr K’s care needs were being met. The services provided to Mr K for his personal care are designed to relieve her of caring duties and it has also funded respite care of two weeks a year. The Council says that either Mr or Mrs B were always present for the assessment and it was intended to review whether their needs as carers were also met. However, the assessments do not record whether Mr and Mrs B are able and willing to continue to care for Mr K or what their desired outcomes for their own wellbeing might be.

Was there fault by the Council causing injustice to Mr K and his family?

27. There was fault by the Council. It did not deal with Mr B’s correspondence asking it to review its decision about how much his father should pay. Although Mr B clearly asked to appeal this in July and August 2018, he did not get a proper response until May 2019. I appreciate that the Council says it had asked Mr B for evidence of his father’s tenancy and that Mr B did not give this at the time, but his request to appeal was clear and the Council should have dealt with it in good time.
28. The Council’s shortcomings have partly contributed to the arrears accruing and would have caused Mr B frustration and uncertainty. However, Mr B was aware of the charge and that some would be payable, even if he disputed the actual figure. The Council’s delay in dealing with his correspondence did not stop his father from making payments, and did not directly cause the arrears.
29. I would expect the Council to be mindful of Mr K’s ability to pay the arrears especially given that he is in receipt of state benefits. Mr B says that payment plan is not sustainable and has twice put Mr K into an overdraft.
30. The Council has explained how it has assessed Mr K’s contribution and why these figures have changed. This was because Mr K’s benefit income reduced significantly. The calculations are correct and there was no fault by the Council here.
31. The Council has explained that the home care is not part of Mr K’s discharge from psychiatric hospital or to prevent his readmission to hospital. In any event, the Council would not be responsible for arranging or funding any aftercare under the Mental Health Act. This is the responsibility of the council for the borough Mr K lived in before he was admitted to hospital. I am satisfied that the Council has properly considered whether it should fund Mr K’s care under the Mental Health Act.
32. The Council has considered what Mrs B does for her father-in-law, and has taken this into account when it put together his support plan in that it has provided respite and services to Mr K. However, there is not a clear assessment or review of Mrs B’s needs as carer, and there is no evidence that the Council took account of her views about her role as carer or whether this is sustainable. Mrs B was unaware that a review of her needs was taking place and the Council did not make this clear, or seek to establish whether it should assess her needs separate to Mr K’s. This was fault by the Council.

Agreed action

The arrears and financial assessment

33. The Council has apologised to Mr B for the delay in responding to his correspondence and has entered into a payment arrangement with him (Mr B deals with Mr K’s finances on his behalf). The arrears stand but the Council will review with Mr B a realistic and sustainable payment plan. It will show the Ombudsman that it has done this within two months of the date of this decision.

Carers Assessment

34. The Council will apologise to Mr and Mrs B for not being clear about the carer’s assessment. It will carry out a fresh assessment of Mrs B’s needs, taking into account her views and agreeing with her a support plan. It will carry out the assessment and agree the plan within two months of the date of this decision, and send evidence of this to the Ombudsman.

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Final decision

35. I have completed my investigation. There was fault by the Council causing injustice to Mr K and his family.

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Parts of the complaint that I did not investigate

36. I have not investigated Mr B’s complaint about the CHC funding. This is funding for nursing care assessed and paid for by the NHS and not the Council. Mr K was not entitled to CHC. Even if the Council had referred Mr K to the NHS, he would not have received any CHC funding.

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Investigator's decision on behalf of the Ombudsman