Summary: Miss B complained the Council double charged her for contributions to her domiciliary care package and respite care and delayed recognising that, sent her invoices after it had agreed not to and failed to offer her a suitable remedy. The Council delayed recognising Miss B was having to pay two contributions and wrongly issued a further invoice in 2020. The financial remedy offered to Miss B, plus a review of the Council’s policy, is satisfactory remedy for the financial loss to Miss B. The Council should also apologise and pay Miss B’s representative an amount to reflect the time and trouble she had to go to pursuing the complaint over a long period of time. The Council should also consider whether others have been similarly affected.

The complaint

1. The complainant, whom I shall refer to as Miss B, complained the Council:
• double charged her for contributions to her domiciliary care package and respite care and delayed recognising that;
• failed to offer her a suitable remedy to correct the financial effects of paying two charges since 2008; and
• issued a further invoice in 2020 when it had agreed not to issue further invoices.

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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. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1), 26A(1), as amended and section 34(3))
3. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
4. 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

5. As part of the investigation, I have:
• considered the complaint and Miss B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided
6. Miss B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Care and support statutory guidance

7. Paragraph 8.42 of the care and support statutory guidance says because a person who receives care and support outside a care home will need to pay their daily living costs such as rent, food and utilities, the charging rules must ensure they have enough money to meet these costs. After charging, a person must be left with the minimum income guarantee (MIG), as set out in the Care and Support (Charging and Assessment of Resources) Regulation 2014.

Background

8. Miss B is concerned about the Council’s decision to charge her for respite care between 2008 and 2020. Throughout that period Miss B had a direct payment for domiciliary care. The Council carried out regular financial assessments to decide whether Miss B had to contribute towards her domiciliary care package. For several years between 2008 and 2020 Miss B had to make a personal contribution. Miss B is concerned about the charges for respite care, which is separate to the domiciliary care package. Miss B says she had to continue to pay towards her domiciliary care package as well as paying for the weeks when she was in respite care. Miss B therefore feels the Council has double charged her.
9. Since 2012 Miss B has not paid any of her respite care charges. That is because since 2012 Miss B has had an advocate. That advocate advised Miss B the Council should not ask her both to contribute towards her domiciliary care package and pay for respite care for those weeks where she was in respite. Miss B’s advocate raised concerns about the Council’s decision to charge Miss B for both respite care and her contribution to her domiciliary care package and has raised that repeatedly with the Council since 2012.
10. In 2019 the Council considered Miss B’s case. The Council recognised its policy of charging for respite care potentially disadvantaged those in receipt of a direct payment where they had to continue to pay for their domiciliary care alongside their respite care. The Council made clear its view Miss B was responsible for charges for her respite care between 2008 at 2019 given the Council charged her in accordance with its policy. The Council agreed though to write off the respite care charges between 2012 and the end of March 2020. The Council did that as a gesture of goodwill to reflect the time taken to deal with Miss B’s concerns. The Council also agreed to change its policy from April 2020. From April 2020 the Council policy is to charge for domiciliary care for stays up to four weeks in length and to charge for respite under residential care rules for stays above four weeks in length. Finally, the Council offered to refund the contributions Miss B made towards her domiciliary care package between 2008 and 2012.
11. The Council accepts it wrongly issued a further invoice to Miss B in February 2020. It has now cancelled that invoice.

Analysis

12. It is clear a problem arose here because Miss B receives a direct payment for her care package and the Council separately arranges respite care through its block contract with care providers. As a result the Council carries out a separate financial assessment process. If that was not the case and Miss B could identify a respite care placement for herself as part of her direct payment she would not have received a separate financial assessment and the respite care package would have been part of her direct payment. As the respite care placement is part of the Council’s block contract the Council cannot include it in Miss B’s direct payment and a separate financial assessment is required.
13. The Council accepts its policy until 2020 was to charge for respite care rather than domiciliary care. The Council’s policy to charge for respite care rather than domiciliary care was based on its understanding that when in respite care the service user would not need domiciliary care. So, there would be only one charge. I am satisfied for those service users not receiving a direct payment this would not result in any financial loss. However, the situation is different for those with a direct payment who need to continue to pay for domiciliary care services even when in respite. The Council now recognises that and has altered its policy. From April 2020 the new policy says the Council will charge any respite stay under the domiciliary rules for the first four weeks of any respite stay.
14. I welcome the Council’s decision to amend its policy. However, I am concerned it took the Council until the end of 2019 to review Miss B’s case and its policy given Miss B’s representative had raised concerns about it since 2012. I am also concerned about that because the Council’s observations record in 2012 noted the fact Miss B was subject to two separate financial assessments: one for the domiciliary care package (direct payment) and one for respite care. I am concerned in those circumstances the Council did not consider revising its policy earlier or address the financial loss to Miss B because of the two separate policies. I consider it likely if the Council had done that it would likely have acted to ensure Miss B paid only one charge.
15. I am satisfied though Miss B has not suffered a financial loss from the Council’s delay reviewing its policy between 2012 and 2020. That is because the evidence I have seen satisfies me Miss B did not make any payments against the respite care invoices after 2012. I therefore consider Miss B’s injustice is limited to the time and trouble she has had to go to pursuing the complaint and the distress caused by receiving invoices and reminders for respite care while also paying towards her domiciliary care. I consider the remedy the Council has already offered for the period 2012-2020 satisfactory remedy for this part of the complaint. That is because the Council has agreed to cancel all invoices issued between 2012 and 2020 as a goodwill gesture. That totals £14,696.48. I consider that a suitable remedy and likely one that exceeds the financial remedy Miss B would have received had the Council considered her case or reviewed the policy earlier.
16. The issue is therefore the period 2008-2012. Miss B says the Council should also cancel all respite care invoices during that period and refund her the amounts she paid for her respite care charges. However, as I said earlier, the Council’s policy between 2008 and 2012 was to charge for respite care. So, the Council charged Miss B in accordance with its policy at the time. I am also satisfied the Council carried out respite care financial assessments between 2008 and 2012, which resulted in the payments Miss B has made. Where I consider the Council at fault though is in treating the financial assessment for respite care completely separate to the financial assessment for domiciliary care. I understand why the Council carried out the assessments in that way given there is separate guidance on charging for domiciliary care compared with charging for residential care, even if that residential care is on a temporary basis such as for respite. Nevertheless, it should have been clear to the Council it was using the same income figures for Miss B and the same allowances when calculating her contribution to respite care as it was using for calculating her contribution to domiciliary care. I am concerned the Council did not identify that fact and the potential for Miss B to have less than the minimum income guarantee as a result. That is fault.
17. So, I have to consider what remedy is suitable for Miss B for the period 2008-2012. The policy in place at the time was for the Council to charge for respite care and it is not my role to comment on the merits of that policy. My concern is with the Council’s failure to ensure Miss B was left with the minimum income guarantee because of the two sets of charges the Council was making. I consider it likely if the Council had considered that point between 2008 and 2012 it would have acted to ensure Miss B did not pay two charges. As the Council’s policy was to charge for respite care I consider it likely the Council would have continued to charge Miss B for respite care and cancelled her contribution towards her domiciliary care package instead. I therefore consider the Council’s offer to refund the amount Miss B paid towards her domiciliary care package between 2008 and 2012 a suitable remedy and one which reflects the policy in place at the time.
18. Miss B also raises concerns about the Council sending her an invoice for respite care charges in February 2020. Miss B says the Council had already agreed not to make any respite care charges until April 2020. The Council accepts it agreed to do that at the end of 2019. The Council therefore accepts it issued the invoice in February 2020 in error. I am satisfied the Council has since cancelled that invoice. I welcome that. I consider that, plus an apology to Miss B, satisfactory remedy for this part of the complaint.
19. It is clear though besides the injustice to Miss B her representative has also had to go to significant time and trouble to pursue the issue with the Council since 2012. I therefore recommend the Council apologise and pay Miss B’s representative £350 to reflect her time and trouble and distress over a lengthy period. I further recommend the Council consider whether it has similarly charged others with a direct payment both a contribution to their domiciliary care charges and payment for periods in respite. The Council should then consider an appropriate remedy for those cases.

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Agreed action

20. Within one month of my decision the Council should:
• apologise to Miss B and her representative for the delay reviewing Miss B’s case and for wrongly issuing an invoice in 2020; and
• pay Miss B’s representative £350 to reflect the time and trouble she has had to go to pursuing the complaint.
21. Within two months of my decision the Council should consider whether there are other service users in receipt of a direct payment for domiciliary care who have also accessed respite under the Council’s previous policy who may have been similarly affected. In those cases the Council should consider an appropriate financial remedy.
22. The Council has already offered an appropriate remedy to Miss B and has amended its policy. The only action outstanding for that is for the Council to refund the amount Miss B paid towards her domiciliary care package between 2008 and 2012, which I recommend the Council do within one month of my decision.

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Final decision

23. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman