Summary: We find the Council was at fault in its handling of residential care charges and respite care for Mr X’s adult son. The Council has agreed to our recommendations for a remedy.

The complaint

1. The complainant whom I shall refer to as Mr X, complained on behalf of his adult son Y, who has learning difficulties. He said the Council did not properly advise him about the charges for Y’s residential care. He said the Council did not tell him how the contribution was calculated. He believed the charge was unfair, and he now has a significant amount to repay. He also complained the Council failed to provide 4 hours per week respite care which it agreed in December 2018.

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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 have discussed the complaint with the complainant and considered the complaint and the copy correspondence provided by the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided. 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

Residential care contributions

5. Y moved into residential care accommodation in 2016. He stayed at the accommodation during the week, but three out of four weekends he spent with his parents. Mr X had responsibility for Y’s finances. The Council completed a financial assessment.
6. Mr X, as Y’s representative signed an agreement about the charges for the residential care. The agreement did not show a specific charge. It also stated, “Your contribution towards the cost of residential accommodation depends upon how much income and capital you have and is based on the information you provided on the personal financial statement.”
7. The Council wrote to Mr X and confirmed there was no contribution to pay based on Y’s income, which at that time was disability living allowance only.
8. In July 2017 the Council reviewed Y’s financial assessment and found that he should contribute £100 per week because he had started to receive employment support allowance in June 2016. This left a personal allowance of £24 per week after contributions were paid. The Council said Mr X did not advise it that Y’s income had increased. However, the Council did not backdate the charge to June 2016. Instead, the Council started the charge from April 2017.
9. Mr X says he did not receive a letter regarding the charge. The Council says it sent a letter in July 2017 to Mr X. However, it appears the Council sent letters and invoices to Y’s accommodation provider.
10. In October 2017 the accommodation provider passed an invoice to Mr X. He called the Council. The Council’s notes say “call from [Mr X] (dad) to advise that he feels [Y’s] contribution is too high and would like new financial assessment.”
11. Mr X then completed a financial referral form asking for a financial assessment which he sent to the Council. He stated in the comments section, “Feels contribution too high.” It appears the Council told Mr X in a telephone call in December that Y’s contribution would not change if it completed a new assessment. It suggested Mr X completed a waiver form. Mr X sent this to the Council in January 2018. In the section headed “brief details of exceptional circumstances” Mr X said that Y only received income of £125 per week, and did not have any money for when he stayed at home. Mr X said it was wrong that Y had to pay twice for the same services. He said Y had expenses of £90 per week. It was not clear what the expenses were for.
12. In March 2018 the Council called Mr X. He stated Y’s expenses of £90 were for clothing, food and shoes. The Council says it then made a decision not to reduce the charge. The Council’s notes on its system state it sent a letter to Mr X to confirm the decision. But it now says it has not found a copy of this letter, so I consider it did not send a letter. However, the Council says a financial assessment manager recalls she advised Mr X verbally that the Council had refused the waiver request. I have not seen a note of this conversation.
13. In November 2018, a social worker and finance assessment manager visited Mr X and discussed the outstanding charges which were now £4700. The Council told Mr X it had refused to waive the charge. Mr X said he would make a payment arrangement. However, he said that the personal allowance the Council allowed Y was not enough for him to live on. Mr X said Y needed to buy food and drink when he went out and had to pay more than average for shoes because of his disability. He also spent money on gym membership for swimming. The Council discussed whether it was “a need or a want” for Y to stay at home 3 weekends out of 4. Mr X said it was a need as it was important for Y to be able to socialise in the community. It appears Mr X asked the Council to increase Y’s personal allowance to £50 per week. The Council also referred to potentially waiving some of the charge. But it appears Council did not progress the matter.
14. In February 2019 Mr X asked Y’s social worker and what was happening about the charge as he was still receiving letters regarding the debt. owed. In April he called and said he had not been aware of the debt until it had reached £4000.
15. The Council discussed the issue internally by email between February and April. The Council noted Mr X had asked for an increase in Y’s personal allowance, and that Y stayed at home three weekends out of four. It said that it had sent letters regarding the charge to Mr X, and that he had not made any payments.
16. In May 2019 the Council visited Mr X. Its note of the visit states it explained how the Council arrived at the client contribution and why the debt, which was now £9000, was building up. Mr X said he had not been made aware of this. The finance manager stated that Mr X had completed a waiver form. The officers showed this to Mr X and confirmed the Council had refused the waiver.
17. The Council received Mr X’s complaint later in May 2019. He said that he had no idea about the charge as previously Y did not have to pay. He asked how it could have got to this stage. He said that if Y must pay, it should be a fair amount.
18. The Council replied to Mr X’s complaint on 24 May at stage one of its complaint procedure. It said the client contribution is an amount the person receiving residential care pays towards the care they receive. The Council considered its records showed it had explained the charging policy, financial assessment and the client contribution a number of times since February 2016. The Council said it had visited him in November 2018 when the arrears were £4700. Mr X had agreed a repayment plan, but had not paid. The Council also said Y’s care plan had been changed to reflect his weekend needs. This meant his personal allowance would increase, and the weekly contribution would reduce slightly. The Council’s system notes show it had increased Y’s personal allowance by approximately £10 to £35 per week.
19. In June 2019 the Council told Mr X the new weekly charge was £90.55 per week.
20. Mr X complained to the Council in August 2019 that it did not take account of the time Y spent at home. Mr X said he had not seen the financial assessments it referred to in its response, apart from one for April 2017 which he saw in June 2019. He asked how the Council advised him about the waiver decision, and asked for a copy. He said he did not agree to a repayment plan in November 2018 as the Council stated.
21. The Council responded in October 2019. It said it upheld its stage one response. It explained it had discovered Y had started receiving benefits from June 2016 but it did not backdate the charge. Mr X had signed the client contribution form, and had applied for a financial waiver and so it believed Mr X was fully aware of the client contribution expected. The Council said that a social worker had visited and explained the debt and told him the Council refused the waiver.
22. The Council said the debt continued to grow as Mr X made no payments yet still received Y’s benefits. The Council said it would like to explore how Mr X was spending Y’s benefits. It noted Mr X accepted he should use Y’s benefits towards the his care charges and it proposed a payment plan should be set up urgently.
23. Mr X complained in November 2019 at stage three of the Council’s procedure. He said the Council had not responded about Y’s expenses when he stayed at home three weekends out of four. He said the Council stated he made a payment arrangement, but he had not done so. He asked for a copy of the agreement.
24. The Council held a meeting with Mr X in December 2019. It noted that Mr X said Y had expenses for food, clothes, horse riding and gym membership (swimming). The Council also noted it agreed swimming and horse riding were beneficial for Y. Due to this, a service, manager attending the meeting discussed the possibility of increasing Y’s personal allowance to £70 per week and back dating it to when he started horse riding from September 2019. However, the Council also noted officers told Mr X that the Council would not accept expenses for food and drink. The Council confirmed the outstanding amount for care contributions was now over £11,000. Mr X stated that he would agree to a reasonable payment plan.
25. In January 2020 the Council wrote to Mr X in response to his complaint. It acknowledged swimming and horse riding were beneficial for Y and said it could take these into consideration. It said his contribution to care charges would decrease from September 2019 when he started horse riding.
26. The Council also stated it would not accept eating out as an expense as it expected Y to pay for this out of money left after he paid his care contribution.
27. In February 2020 the Council revised Y’s personal allowance increasing it to £53.75. This took into account the cost of riding lessons for Y three weekends out of four. Y’s care contribution reduced to £74.90 per week. The Council did not refer to swimming in its notes regarding the revised personal allowance.
28. Later in February the Council wrote to Mr X to provide more details of the sequence of events and information it had given. It stated it revised Y’s personal allowance in June 2019 taking account of the additional expense of shoes. It confirmed it had also now revised his contribution having taken account of horse riding. The Council said Y should have been paying contributions throughout and that Mr X was responsible for paying as his appointee. It said it had explained to Mr X it would consider if Y’s finances were being managed in the best way. If necessary, the Council could seek to become Y’s appointee for his money.
29. In April 2020 Mr X complained further at stage three of the Council’s procedure. He said that
• The Council had not provided enough detail in its letter of February 2020.
• The Council had not informed him in a timely manner of the outcome of the waiver application or given him information about his right of appeal.
• He first became aware of the charges in November 2018.
• The Council had sent all previous invoices to Y’s accommodation provider.
• The first time he received the Council’s financial assessment dated 10 April 2017 was in June 2019.
• The Council had failed to explain how he knew about, took part in, or agreed with the financial assessments.
• He still disagreed with the Council’s allowances made for Y’s recreational activities, and its lack of contribution towards food when went out.
30. The Council’s response in May 2020 stated that it believed it had properly understood and addressed Mr X’s complaint. However, it accepted it should have provided a breakdown of the financial calculation. The Council provided more details. Regarding the waiver decision the Council accepted it delayed and did not put the decision in writing. But it noted Mr X was still able to pursue his dispute.
31. The Council considered all the information in its records and said it was reasonable to believe Mr X knew about the charges in October 2017, not November 2018, because he called the Council to question the charges. The Council also confirmed that while invoices were sent to the accommodation provider up to October 2017, it then sent invoices to Mr X. the Council noted Mr X said he did not receive the financial assessments. But it found that it was not that he did not receive the assessments but rather that he disagreed with them. The Council considered that Mr X knew about the assessments and knew that he could challenge them. With regard to allowances for food Mr X complained should be taken into account, the Council said it had considered its previous responses correctly advised that food was not an expense it would allow. The Council said it had accepted some expenses for Y, but this was exceptional.
32. The Council agreed it did not provide timely responses to Mr X’s complaints in accordance with its procedure. It said it would review matters to improve response times. It recommended social workers completed a questionnaire with clients about the financial assessment so that clients understood their responsibilities. It recommended a review of the waiver process to ensure it informed people regarding the outcome. The Council recommended a payment of £200 to Mr X for his time and trouble. It also agreed to write off the charges before October 2017 for its delay in sending invoices to the correct person. Finally, the Council said Mr X should urgently set up a payment plan. If he did not do so within 3 months the Council said it would apply to become Y’s appointee.
33. Mr X did not accept the Council’s response and complained to the Ombudsman. He said that the Council had not carried out a fair assessment of Y’s contribution, had not told him it refused the waiver request and had not properly advised him about the charges mounting up.
34. In its response to our investigation the Council accepted it was at fault. It had reviewed its financial assessment and confirmed it had not calculated Y’s financial contributions correctly. It had entered the information about Y’s residential care and respite package on its system incorrectly. The Council had not taken account of the three weekends out of four that Y spent at home. Therefore, the Council had charged too much. The Council revised its assessment leading to a reduction in the charges of £3898. The new weekly charge was now £52, instead of £76.90. The Council accepted communication between departments was not clear, and this meant it did not pick up the error. The Council confirmed it would not apply to become Y’s appointee in view of its findings. As a remedy the Council set out an action plan to prevent the fault occurring again. This included:
• Ensuring all officers checked the accuracy of the schedules listing the services the Council agrees to provide as part of the care plan.
• A review of the instructions to social workers and financial assessment team staff regarding completing the care plan schedule.
• Social work staff systematically checking all current schedules are correct.
• Managers completing regular random audits of care plan schedules.
• Reminding staff to follow up agreed actions. This would enable service users to challenge issues such as increasing debt in an informed way.
35. The Council also referred to its personal remedies for Mr X and Y. It said it:
• Met with Mr X and offered a sincere apology.
• Provided clear information to Mr X about the contribution.
• Offered to pay Mr X £500 for his time and trouble as it had not recognised its faults through 3 stages of the complaints process. It was not until Mr X went to the Ombudsman that the Council identified its errors.
• Offered to pay Mr and Mrs X £1000 each for distress caused by the accumulating arrears which were higher than they should have been due to its errors.
• Recommended Mr X arranged to pay the outstanding arrears as soon as possible, and the ongoing charges.

Analysis

36. The Council accepted it did not properly calculate the charges for Y’s residential care. It also agreed it did not recognise this throughout the complaint process. It delayed dealing with Mr X’s complaints. I note the Council accepts it did not send a written notice regarding its refusal of the waiver. I find the Council at fault here.
37. I consider the Council has offered suitable financial remedies for the personal injustice to Mr and Mrs X and Y for these faults.
38. However, I consider the Council was also at fault in its lack of clarity about the increases to Y’s personal allowance. Mr X had asked for Y’s expenses at the weekend including food, exercise and leisure activities to be taken into account. He also asked the Council to consider chiropody and extra shoes. The Council described the increase in June 2019 of £10 per week as “to meet his weekend needs” but also said at another point that the increase was due to the Council accepting heavy use of shoes as an additional cost. I recommended the Council clarifies what it has considered, what it has accepted and why.
39. The Council also appeared to state in December 2019 it would increase Y’s personal allowance to cover gym membership for swimming as well as horse riding. The Council said it agreed swimming was beneficial in its complaint responses and in response to my enquiries. However, the increase of £18.75 per week covers horse riding only. I asked the Council to review its decision and clarify if it will take account of swimming in the personal allowance as well.
40. I consider the service improvements the Council set out in its action plan are a suitable remedy to ensure its faults are not repeated for other service users.

Direct payments respite care

41. Mr X complained to the Council in April 2019 that it had not arranged respite care which it agreed in December 2017. Mr X said a social worker told him it would not pay due to the care contribution arrears.
42. The Council had agreed to source a care provider itself to provide 2 hours care per week. But it was unbale to find a provider. It then offered direct payments, and agreed a further 2 hours in June 2018. The direct payments to Mr X were meant to pay for a personal assistant to provide assistance to Y for the weeks when he stayed at home. This would give Mr and Mrs X respite support.
43. The Council replied to Mr X in May 2019. It said Mr X had agreed to find a personal assistant himself. It said the social worker and a disability charity were now assisting Mr X.
44. Mr X complained in August direct payments were still not paid. The Council replied in October that it told Mr X he should apply by sending a form once he found a support worker. However, the Council had not received his application.
45. In the final stages of the complaint procedure the Council accepted that matters had been allowed to drift. It said that from June 2018 there was confusion about who was responsible for finding a PA and how to do this. The Council said whilst it was not its job to recruit a PA, it was clear Mr X was not making progress with it. The Council said it had asked Y’s social worker to help progress the matter. The Council recommended that it should simplify the process of sourcing a PA so that customers could follow the process more easily.
46. In its reply to my enquiries the Council said it recognised it failed to handle Mr X’s request for direct payments adequately from June 2018. This meant Mr X and Y missed out on PA support and respite. It offered to pay a remedy of £2500 which would be used to reduce Y’s outstanding arrears.
47. The Council says a social worker who spoke to Mr X about the direct payments agrees he said the direct payments may not have been granted due to the ongoing debt issue.

Analysis

48. I see the Council recognised it could have helped Mr X more to find a personal assistant for Y. While it is not the Council’s role to recruit a PA when direct payments are agreed, Mr X was clearly having difficulties. There was a lack of clarity about how Mr X might recruit a PA. This was fault. I consider it is difficult to determine whether Mr X would have found a PA even if the Council had provided more help. But there is uncertainty here and a lack of support and respite over a long period. I find the Council’s offer of £2500 is a suitable remedy. I also consider it is appropriate for the Council to use this to reduce the arrears.
49. The social worker’s comment that the direct payments process may have been affected by the arrears was not helpful. But I do not think the level of arrears was the reason why the Council did not pay the direct payments.

Agreed action

50. I recommended that within 6 weeks of my decision the Council pays the personal remedies it offered as follows:
• £500 to Mr X for his time and trouble
• £1000 each to Mr and Mrs X for the distress caused by its miscalculation of the accumulating arrears.
• £2500 for its poor handling of Mr X’s direct payments request, to be offset against Y’s arrears.
51. The Council should also within 6 weeks of my decision
• Write to Mr X and the Ombudsman confirming the outcome of its action plan.
• Consider all the expenses Mr X has requested and write to him with a copy to the Ombudsman, clarifying what is has agreed or will agree to and its reasons.
52. The Council has agreed the remedies I proposed.

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Investigator's decision on behalf of the Ombudsman