Summary: Mr Y complains about the Council’s decisions on Mrs X’s care charges, causing financial loss, distress, time and trouble. The Ombudsman finds the Council at fault because it did not provide adequate, timely or accurate information on care charges. The Ombudsman recommends the Council provides Mr Y with an apology and payment for distress, time and trouble; waives Mrs X’s invoice for client contributions and; takes action to prevent recurrence.

The complaint

1. Mr Y complains about the Council’s calculation of Mrs X’s care contributions. He says the Council’s financial assessment did not take into account relevant expenses and the invoice does not accurately reflect carer visits. Mr Y says Mrs X has suffered financial loss and he has suffered distress, time and trouble.

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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. 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

4. I spoke to Mr Y and I reviewed documents provided by Mr Y and the Council. I gave Mr Y and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.

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What I found

Care charges

5. A council carries out a care needs assessment to decide whether an individual has care needs that it is must meet. It then completes a care and support plan which sets out how it will meet those needs and how much this will cost. The amount a council expects it will cost to meet an individual’s assessed needs is called the personal budget.
6. The council carries out a financial assessment to see how much a person will contribute towards their personal budget. This amount is called a client contribution. The council will pay the remaining costs.
7. The Care Act also provides councils with the powers to meet urgent needs where they have not completed an assessment. For example, where an individual’s condition deteriorates rapidly or they have an accident, they will need a swift response to ensure their needs are met.
8. Councils should ensure their approach to charging is clear and transparent, so people know what they will be charged.

Council charging policy

9. The Council has provided a copy of its non-residential charging policy. This explains if you have cancelled any care visits, or your care provider has missed calls, you can ask for your contributions to be reviewed to check if you are due a refund.
10. If a review is asked for, it will take place at the end of your Personal Budget Year, so that the cost of your care for the whole year can be taken into account. When this review takes place, the cost of your care for the whole year will be compared to the total annual contribution that you have paid. A refund is only due if you have paid more than the total cost of the services you have received.

Disability related expenditure

11. In completing a financial assessment the council should take into account any disability related expenses (“DRE”).
12. The Care Act sets out items a council should consider as DRE, but this is not an exhaustive list. A council should include any reasonable additional costs directly related to a person’s disability.

Direct payments

13. A council can make cash payments to an individual to allow them to buy and arrange the care they need themselves. This is called a direct payment.
14. The council will pay funds into a direct payment account. The service user must also pay any client contributions into this direct payment account. The funds in the direct payment account can then be used to pay for services.
15. The council must ensure people are given relevant and timely information about direct payments, so they can decide whether to request a payment. A council should also support the person to use and manage the payment appropriately. The route to a direct payment is for a person to request one, but the council should support the person’s right to make this request by providing information. People must not be forced to take a direct payment against their will, but instead be informed of the choices available to them.

What happened

16. Mr Y has Power of Attorney over his mother in law’s finances, health and welfare, as she (Mrs X) has dementia and lacks capacity.
17. Mrs X’s condition deteriorated in 2018 and her family sought a care assessment.
18. The Council started a care needs assessment by phone with Mrs X’s daughter, Mrs Y, on 6 September 2018. The record of this assessment shows the Council found Mrs X had eligible care needs and set an indicative budget of £100.27 per week to meet those needs. It discussed finances and direct payments with Mrs Y. Mrs Y expressed a preference for direct payments so they could ensure Mrs X always had the same carer. The Council explained it would take up to 12 weeks to set up the direct payment and that client contributions were subject to a financial assessment. However, it could not yet advise of the personal budget. Mrs Y said they would fund the care pending the direct payments as she felt Mrs X needed care urgently. The Council then sent further information about direct payments by email.
19. A few days later Mrs Y queried the timescales for assessment as she did not know what carers they could afford. The Council said it could not provide this information.
20. On 11 October Mrs Y informed the Council she had arranged daily carer visits for Mrs X at a cost of £15.00 per hour plus travel costs.
21. The Council visited Mrs X and completed her care assessment with support from another family member on 12 October. By this time Mrs Y had arranged daily care visits for Mrs X. The Council gave an indicative budget of £308.27 per week.
22. On 25 October Mrs Y asked the Council how much Mrs X would have to pay towards her care and the Council said it could not advise pending the financial assessment.
23. On 6 November the Council discussed Mrs X’s care arrangements with Mrs X, Mr Y and Mrs Y. Mr and Mrs Y explained they would pay the carers directly, without administrative support from the Council. They said they paid the carers £15.00 per hour plus £5.00 fuel per visit.
24. On 9 November the Council told Mrs Y it was awaiting details of care costs from the direct payment administrator, and if these were above the indicative budget it would seek authorisation to increase the budget.
25. Mr and Mrs Y chased the Council for updates on funding. The Council explained there was a delay while its legal team considered their arrangements.
26. In January 2019 the Council told Mr Y there was no legal issue with the care arrangements they had made and it had again asked the direct payment administrator for details of costs.
27. On 6 January the Council told Mr Y that Mrs X’s indicative budget was £257.07 per week but the care and support plan cost £262.50 per week. The Council had agreed the budget would be increased to meet this cost. The Council said this was for care and support; it did not include the £5.00 mileage per trip. Mr Y said either Mrs X or the family would fund this.
28. The Council produced Mrs X’s care and support plan on 10 January. This records Mrs X needs 17.5 hours’ care per week at a cost of £15.00 per hour, total £262.50 per week. The plan records that Mr Y had agreed to fund the £5.00 per trip travel costs and the Council explained this was separate to the financial assessment and client contribution.
29. On 11 January the Council informed Mr Y of the outcome of the financial assessment; that Mrs X would need to contribute £57.78 per week and the Council would pay the remaining £204.72 per week.
30. On 14 January Mr Y emailed the Council concerned that its financial assessment did not take into account the amount spent on carers’ travel. Mrs X had three carer visits per day and so spent £105.00 per week on the £5.00 per trip travel cost.
31. The Council explained it could only pay up to the expected cost of care of £15.30 per hour, which included travel, and so it would not cover the additional travel costs. Mr Y would have to resolve this through a private agreement with the carers.
32. Mr Y said he understood the Council would not pay for travel however this expense should be taken into account in the financial assessment. The Council agreed to pass this onto the relevant team.
33. On 22 January Mrs X’s family decided to place her in respite care temporarily.
34. On 29 January Mr Y discussed Mrs X’s respite stay with the Council. The Council explained the family had privately placed Mrs X in respite, the Council had not assessed Mrs X as needing respite and it had only agreed for the direct payment to be spent on carer visits. However, following Mr Y’s request it would consider whether to agree to allow the direct payments to be spent on this care.
35. On 18 February the Council agreed Mr Y could use 4 weeks’ of direct payments towards the cost of respite. Further that the carer travels costs were not DRE and so would not be taken into account in the financial assessment.
36. In August 2019 the Council sent Mrs X an invoice in the sum of £1147.35 to cover client contributions for the period 6 September 2018 to 22 January 2019. I note this would cover Mrs X’s care contribution for the entire period at a rate of £57.78 per week.
37. Mr Y complained to the Council on 16 August 2019. He said Mrs X had paid £2165.00 in carers’ travel costs and £1305.00 for respite care which the Council did not take into account in its financial assessment. He disputed she should have to pay any further sum towards her care.
38. In correspondence of 10 September the Council explained it did not expect Mrs X to pay for travel over and above the cost of carer visits at £15.00 per hour and so the travel costs were not DRE. Therefore, it did not take this sum into account in its financial assessment. The Council had previously told Mr Y it would allow a maximum of £15.30 per hour for carer costs which included travel, based on what it would usually pay. The invoice remained payable. I note the Council did not comment on the costs incurred for respite care.
39. Mr Y complained further, on 15 September. He felt the travels costs should have been taken into account in the financial assessment as Mrs X could not afford £57.78 per week once these costs were taken into account. He had raised this on 14 January but received no response. He also complained the Council had not taken into account that some of the carer visits were cancelled.
40. The Council responded on 22 November. It said carer travels costs were not DRE to be considered under the financial assessment. The Council had previously explained to Mr Y that the carers he found at a cost of £15.00 per hour was very near the maximum rate of £15.30 per hour including travel, and therefore any additional travel costs would have to be paid through a private arrangement, which he agreed. I note the Council did not address Mr Y’s query about cancelled carer visits.
41. Mr Y then complained to the Ombudsman that:
• The Council did not take into account the amount Mrs X spent on carers’ travel costs in its financial assessment.
• The Council did not complete the financial assessment until January 2019.
• The invoice is based on daily carer visits for the whole period but they cancelled some of these visits.
42. In response to the Ombudsman’s enquiries the Council said on 6 September 2018 it explained to the family it could commission care directly or they could choose direct payments. It could have provided care through its own providers at a rate of £15.30 per hour if requested. However, the family wanted to arrange their own care using direct payments. It refers to its case note of 3 January 2019 where Mr Y said he understood they would pay the additional travel costs themselves.
43. The Council has provided a copy of its direct payment audit summary. This shows the Council placed £5790.65 in the direct payment account in February 2019. £3871.38 was withdrawn leaving a surplus of £1919.27 which the Council recovered. No client contributions were paid into the account. The audit shows the amount spent on carer visits, total £3052.50. It also shows the Council later agreed for the family to use the direct payments towards the cost of respite, total £818.88. The audit says Mr Y paid £1981.12 towards respite costs to the provider directly.
44. The Council says it took into account the cost spent on carer visits in its audit. However, the amount paid for carers exceeded the service user contributions and so no refund was due.
45. The Council explains it was unaware of any respite plans but agreed the family could use the direct payment to pay towards the cost of respite.
46. The Council says it received the completed financial assessment forms on 25 September 2018 but it did not issue the outcome until 11 January 2019. It apologises for this delay and explains it has improved its processes to reduce delays in future, including the introduction of light touch assessments that people can complete online. Because of its delay the family funded Mrs X’s care themselves for a prolonged period of time. Because of this it offers to waive the invoice of £1147.35.

Findings

47. The Council carried out Mrs X’s care needs assessment in October 2018 but it did not produce a care plan or inform Mrs X’s family of her personal budget until January 2019. I find this delay amounts to fault. Mrs X’s family were unsure how much they could spend on carers as a result, causing distress and uncertainty. I will recommend a payment to remedy this injustice.
48. There is no evidence the Council explained it would not fund carers’ travel costs or take such costs into account in its financial assessment, until January 2019. This is despite the family telling the Council they were paying travel costs in October 2018. I find this amounts to fault. Had the Council provided this information at the outset, it is more likely than not the family would have made other care arrangements to avoid incurring this additional cost. I will therefore recommend the Council reimburse the costs incurred due to its fault.
49. The Council accepts it delayed completing the financial assessment. This is fault. Because of its delay Mrs X’s family did not have access to direct payments and had to fund care themselves for a long period, causing distress. I note the Council has since apologised and taken action to prevent delays in future. It has also offered to waive the invoice for client contributions. I consider the Council’s proposed remedy for delay is reasonable.
50. The Council appears to have otherwise completed its financial assessment in line with the law. It explained carer travel costs were not DRE and so were not taken into account. And I note it completed the financial assessment before Mrs X incurred any respite costs.
51. The Council assessed that Mrs X was able to contribute £57.78 per week towards her care costs. Mrs X had to pay this sum and the Council would pay the shortfall to make up the personal budget. Although carer visits were cancelled, Mrs X still had to pay her contributions in full. She was only due a refund if her contributions exceeded the total amount spent on care. In this case, the Council invoiced Mrs X £1147.35 for client contributions, which was less than the total amount of £3052.50 spent on carer visits. While the invoice for service contributions is therefore correct, the failure to provide clear information to Mr Y in response to his complaints is fault. Mr Y was put to avoidable time and trouble seeking to resolve this complaint as result.
52. The Council did not assess Mrs X as needing respite care, rather her family decided to move her into respite. This means the Council did not have any duty to fund the placement however, it considered Mr Y’s request for it to do so. The Council agreed Mr Y could use the direct payment towards the cost of four weeks’ stay. This meant it would pay a maximum of £818.88 towards the cost. Mr Y paid the remaining cost of £1981.12 to the provider directly. The Council did not need to take into account Mr Y’s payment during its direct payment audit, because the respite stay was a private arrangement. I find no fault by the Council in this regard.

Agreed action

53. To remedy the injustice set out above I recommend the Council carries out the following actions:
54. Within one month:
• Provide Mr Y with a written apology for the faults identified in this decision.
• Pay Mr Y £300 for the distress and uncertainty suffered by him and his family.
• Pay Mr Y £100 for the time and trouble he has suffered.
• Reimburse the costs incurred on carers’ travel for the period 6 September 2018 to 22 January 2019 subject to Mr Y providing evidence of those costs to the Council.
• Waive the invoice issued to Mrs X for client contributions.
• Remind staff of their duty to provide clear and transparent information about care charges.
55. The Council has accepted my recommendations.

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Final decision

56. I find the Council at fault because it did not provide adequate, timely or accurate information on Mrs X’s care charges. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman