Summary: Mrs F complains the Council issued late invoices for her husband’s care and did not take into account his disability related expenses. The invoices were late and the Council failed to reply to one of Mrs F’s complaints. We have found no fault in the Council’s calculations. The Council has agreed to apologise and reduce the amount owed by £100 to acknowledge the time and trouble caused. Mrs F should continue with the repayment plan.

The complaint

1. Mrs F complains on behalf of her husband, Mr F, that the Council has not taken into account his disability related expenses when calculating his contribution to his home care and issued late invoices for care provided from August to December 2019, resulting in a large bill being sent in February 2020 and incorrect invoices being sent since then.
2. Mrs F says the Council’s actions have caused them stress and financial difficulties and have affected her mental health, leading to suicidal thoughts.

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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. 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. I considered the information Mrs F sent and the Council’s response to my enquiries and:
• The Care Act 2014
• The Care and Support Statutory Guidance 2014
• The Care and Support (Charging and Assessment of Resources) Regulations 2014
6. Mrs F 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

Charging for social care services

7. Local authorities have a duty to arrange care and support for those with eligible needs. 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)
8. The Guidance says that when a council decides to charge, it must assess a person’s finances to determine what contribution he or she should make to a personal budget for care. In assessing what a person can afford to pay, a council must take into account their income, such as pensions or benefits. An assessment must be completed when the person’s circumstances change or if they ask for an assessment.

Disability related expenses

9. If a council takes a disability benefit, such as Attendance Allowance, into account when calculating how much a person should contribute towards the cost of their care, they must also assess disability-related expenses (DREs) in the financial assessment. This is because councils must leave individuals with enough money to pay for necessary disability related expenditure to meet any needs not being met by the council.

What happened

10. Mr F has health conditions and confusion; I have not seen any assessment that he lacks capacity to manage his finances. He lives at home with his wife, Mrs F, and receives Attendance Allowance. Mrs F was previously his full-time carer but also has health conditions. Mr F started to receive a daily visit of 45 minutes for personal care in February 2019.
11. In April 2019, the Council changed its charging policy to take Attendance Allowance into account, which doubled Mr F’s assessed contribution. In July 2019, the Council sent Mr and Mrs F a large, backdated bill. Mrs F complained that the Council had not advised her of the change to the charging policy. Following the involvement of Mrs F’s MP, the Council accepted this and said Mr F did not need to pay for care prior to July 2019.
12. The Council assessed Mr F’s finances; the July 2019 financial assessment form does not list any DREs. The Council wrote to Mrs F on 14 August 2019 to say Mr F’s assessed contribution was £65.87 per week. The Council said it would send monthly invoices.
13. The Council says there was another visit on 13 September 2019 and a further financial assessment form was completed, but I have not seen any evidence of this.
14. Mrs F says she received the first invoice in October 2019, which she paid, but did not receive another one until January 2020. That invoice was for £893.53 for 17 weeks of care from August to the end of November 2019.
15. On 18 February 2020 Mrs F set up a standing order to pay £87.65 each week, this covered Mr F’s weekly contribution plus £21.78 a week towards the arrears.
16. At the end of February 2020, the Council issued a further invoice for December and January for £329.35 and the following day it sent a reminder for unpaid invoices totalling £1,135.23.
17. Mrs F complained on 29 February 2020. The Council responded to the complaint on 6 March 2020. It accepted the invoices for care from August to November had not been generated on time due to an error in its database. It had therefore manually generated the £893 invoice; there was no apology. The Council referred Mrs F to the Ombudsman, as it has a single stage complaint process.
18. Mrs F remained dissatisfied and considered the arrears had been caused by the Council’s errors. She emailed the Council on 15 March 2020 to say she had provided receipts for DREs but had received no reply. Mrs F complained she had received a final demand despite having set up a standing order to pay off the arrears. She said the stress of dealing with Mr F’s finances and the Council’s threats of legal action were increasing her anxiety and depression. She therefore no longer felt able to manage Mr F’s finances. She suggested Mr F needed a capacity assessment. As she had no legal power to manage Mr F’s finances, she would stop the standing order.
19. I have seen no evidence the Council replied to this email.
20. In March 2020 Mrs F suspended the care provision due to the COVID-19 pandemic, as she did not want to put Mr F at risk. She made a fifth and final payment of £87.65 on 31 March 2020. The Council contacted her every week to check how they were managing.
21. Mrs F told her MP on 19 April 2020 that the Council had not replied to her email and that no invoices had been issued in March and April (for the care provided in January and February). She also complained to the Ombudsman, but we were unable to progress it until we had Mr F’s consent.
22. The Council issued further reminders in April and May 2020. This was because Mrs F had stopped the standing order.
23. The Council wrote to Mrs F’s MP on 19 May 2020. It said its software had not generated the invoices as there were two open financial assessments on the Council’s payment system. This had been amended but further problems recurred in November 2019 and January 2020. The Council would monitor the account.
24. The Council spoke to Mrs F and she agreed to pay £50 per week to pay off the outstanding balance, which at that point was £1,311.59. The next day the Council raised an invoice for the care provided in March and on 3 June 2020 it invoiced Mrs F for the period 6 January to 1 March 2020.
25. Mrs F started paying £20 per week towards the arrears on 9 June 2020. The Council continued to issue reminders. It contacted Mrs F on 1 July as she was paying less than initially agreed. Mrs F said she could not afford to pay £50 per week and the Council agreed a new repayment plan of £20 per week towards the arears in addition to full payment of any future invoices.
26. In response to my enquiries, the Council said Mrs F had completed a further financial assessment form in autumn 2020, this had listed DREs such as extra laundry costs. Mr F’s revised assessed contribution in October 2020 was £44.59 per week, but at present he was not receiving a service.
27. By 1 December 2020, Mrs F had paid £1,194.88 and the outstanding balance was £1,062.86.

My findings

28. There is no dispute that the Council issued late invoices to Mr F for the care he received in August to December 2019, and January to March 2020. This is fault.
29. The Council also issued reminders in March 2020 and after June 2020 although Mrs F was paying. I realise these were automatically generated, but I consider it to be fault as the Council had said in May 2020 it would monitor Mrs F’s account and it agreed to the repayment plan in July 2020.
30. Mrs F complains the Council did not acknowledge the receipts she provided for DREs in March 2020 and did not take any DREs into account in determining Mr F’s contribution. The Council does not appear to have received the receipts, which is unfortunate, but the July 2019 financial assessment form does not list any DREs, so my provisional view is there was no fault by the Council in not taking DREs into account.
31. I have seen no evidence of fault in the Council's calculations in July 2019 and find the financial assessment was completed in line with the requirements of the law, statutory guidance and the Council's own policy.
32. This means I find the invoices issued from October 2019 to June 2020 are correct.
33. Mrs F told us that, given their limited finances, when she did not receive regular invoices the money was spent. I understand that the fact they were issued late has caused Mrs F inconvenience and frustration. In particular, the January 2020 invoice was for a large amount, which caused her distress. However, Mr and Mrs F were aware that Mr F had to make a contribution to the cost of his care and from August 2019 they knew this would be £65.87 per week. So the invoices still had to be paid and budgeted for. I therefore do not consider that the fault means Mr F does not need to pay his contribution. Mrs F should continue with the payment plan that has been agreed.
34. The Council did not reply to Mrs F’s 15 March 2020 email. My provisional view is that was fault. Whilst the Council has a single stage complaint process for adult social care, and had replied to her earlier complaint, the email raised new issues about DREs and Mr F’s capacity. I consider the email should have been raised as a second, new complaint. This fault caused time and trouble to Mrs F as she had to take her complaint to her MP and the Ombudsman.
35. Mrs F raised concerns that she did not have the legal authority to manage Mr F’s finances. As there has been no assessment that Mr F lacks capacity to manage his finances, the law says I must assume he has that capacity. In which case he can give consent to Mrs F to manage the bills for him. If Mrs F is concerned that he does not have capacity, she may ask the Council to assess him.
36. People who lack capacity to give consent to a financial assessment and who do not have a DWP appointee, or Power of Attorney in place, may require the appointment of a property and affairs deputyship by the Court of Protection, to enable the person appointed to access information about bank accounts and financial affairs.

Agreed action

37. Within a month of my final decision, the Council has agreed to:
• Apologise to Mr and Mrs F for the distress caused by issuing late invoices and unnecessary reminders.
• Reduce the amount owed by £100 to acknowledge the time and trouble caused by failing to reply to Mrs F’s 15 March 2020 email.

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Final decision

38. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman