Summary: Mr D complains on behalf of his late mother, Mrs J, that the Council wrongly charged for her home care. The Council has accepted it did not advise Mr D properly prior to July 2018 and has already offered to waive the extra charges for the period October 2015 to May 2018. This is a suitable remedy. We have found no fault in the way the Council charged Mrs J from June 2018 to September 2019. Mr D should now pay the outstanding amount.

The complaint

1. Mr D complains on behalf of his late mother, Mrs J, that the Council wrongly charged for her home care. In particular he complains the Council:
• Included unexplained extra charges on inadequate invoices
• Refused to provide evidence to justify the extra charges
• Failed to check the accuracy of the home care provider's figures
• Made errors in its charging which it has failed to explain
• Failed to reply to his correspondence and has not properly investigated his complaints

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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 D about his complaint and considered the information he sent, the Council’s response to my enquiries and:
• The Care Act 2014 ("the Act")
• The Care and Support Statutory Guidance 2014 ("the Guidance")
• The Care and Support (Charging and Assessment of Resources) Regulations 2014 ("the Regulations")
• The Council's Charging Policy for Adult Social Care
5. Mr D 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

6. The Act requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan.
7. Councils should conduct a review of a care and support plan at least every 12 months and if the adult, or a person acting on the adult’s behalf, asks for one. If there is any information or evidence that suggests that circumstances have changed in a way that may affect the efficacy, appropriateness or content of the plan, then the local authority should immediately conduct a review to ascertain whether the plan requires revision. For example, where there is evidence of a deterioration of the person’s physical or mental wellbeing.

Charging for social care services

8. Where a council arranges care and support to meet a person's eligible needs, it may charge the adult for the cost of the care.
9. Councils must assess a person’s finances to decide what contribution he or she should make to the costs of their care. Where the person has resources above the financial limits (£23,250) the council may charge the person for the full cost of their care and support. Such "self-funders" are responsible for paying for the cost of their care and support, but the council takes on the responsibility for meeting their needs. Councils may charge an arrangement fee, in addition to the costs of meeting their needs, to cover the costs of putting in place the care and support required.
10. The Council’s policy says self-funders will be charged fully for the services they receive, up to the actual cost of the service and the fees for non-residential services will be reviewed each year.
11. Councils should ensure there is sufficient information and advice available to ensure that the person or their representative is able to understand any contributions they are asked to make.
12. The Council’s Personalisation and Assessment Team assess service users’ finances and collect payment for non-residential services. Home care fees can be paid by a number of methods such as standing order and direct debits. The Council’s Payments team issues statements that set out the charges for care.

What happened

13. There has been a great deal of correspondence between Mr D and the Council about this matter from July 2018 to July 2020. I have not detailed all of it here. I have set out the key events leading to Mr D’s complaints.
14. Mrs J was elderly and lived at home. Her November 2017 care and support plan says she had eligible care needs and was supported with a cleaner, hot meals delivery and telecare equipment.
15. She had two ten-minute home care visits a day to administer medication, a total of 14 visits per week. Once a week one of these calls was extended to 30 minutes to help Mrs J have a bath. This meant the care plan said she should receive two hours 40 minutes (2.67hrs) of care each week. Mr D told me that the cost in 2012 was £11 per hour.
16. Mrs J was a self-funder and paid the full cost of her care, plus an arrangement fee of £280 per year. The Council sent Mrs J monthly statements that set out the weekly charges for her care. The statements do not specify the hourly rate or the number of hours charged for.
17. On 3 July 2018, the Council’s Personalisation and Assessment team wrote to Mr D. It said that it had recently reconciled the actual cost of the care Mrs J had received against the amount she had been charged from October 2015 to May 2018. The letter said Mrs J should have been charged £8,737.06 in that three-year period and therefore “the following adjustment needs to be made to your account £1013.34”. In response to my enquiries the Council clarified this meant Mrs J had been undercharged by £1,013.34. The letter said the Council would reconcile the account in this way every six months from now on.
18. Mr D said there were substantial differences between the new charges and the care plan that had been agreed. He asked for more information and the Council sent Mr D the home care provider’s call logs. It explained that Mrs J’s charges had been based on the hours set out in her care and support plan. The Council had now used the home care provider’s data to determine the actual amount of care Mrs J had received. Mr D asked for the call logs as a spreadsheet, but the Council did not hold it in this format as it was the care provider’s data.
19. There was further correspondence. The Council sent Mr D a spreadsheet on 3 April 2019 showing the actual hours of care provided to Mrs J each week, the weekly actual cost and the planned hours and costs. It further explained the reconciliation process. It said the care provider’s contract required the carers to “dial in” when they arrived at a service user’s home and “dial out” when they left, to record the actual time spent at the property. The care provider then calculates the actual cost of care and invoices the Council, which pays and then collects from the service user.
20. The Council said the cost of the care in 2018/19 was £15 per hour plus £1.24 “per travel unit”, i.e. an extra travel charge for each visit made. A review of Mrs J’s reconciliation showed Mrs D had been undercharged a further £436.31. In total she owed £2,102.86.
21. On 16 April 2019 the Council sent Mr D a letter notifying of a fee increase from 1 April 2019. The new hourly rate for home care would be £15.49 plus £1.29 per visit for travel.
22. I have seen no evidence there was an annual review of Mrs J’s care and support in November 2018. In April 2019 the Council asked a social worker to review Mrs J’s needs. A new care and support plan written on 29 April 2019 proposed increasing the daily visits to 20 minutes. This needed to be discussed with Mr D but he was away. Mr D says he wrote to the Council in May 2019, but it says it did not receive these letters.
23. Mrs J went into hospital. After she returned home Mr D asked for a review of her needs. Following discussions with Mr D, a second care and support plan was issued on 17 June 2019. This cancelled the weekly bath visit and increased one of the daily visits to 15 minutes. The other remained at 10 minutes. The total hours per week were two hours 55 minutes (2.92hrs). The case records say “SW has stated in case notes that overstays were generally for ensuring medication was taken properly as Mrs J has dementia and this has taken more time than allocated. Mr D has argued that meds visits should only take 10 mins and would not agree to additional time being written into the care plan.”
24. Mr D continued to correspond with the Council about the differences between the actual and planned costs of care. In July 2019 he wrote to the Council’s Payments team. The Council sent a joint reply from both Personalisation and Payments teams in August 2019. It said it had already responded to Mr D’s queries about the reconciliation process.
25. Mr D made a formal complaint on 25 September 2019, he addressed this to the Payments team. He said the Council had ignored his correspondence, had sent inadequate invoices and had failed to explain the charges.
26. The team replied on 9 October 2019. It said it had not received some of Mr D’s correspondence and the Council had provided the information Mr D had requested. It explained the Payments team issued statements, which were a summary to confirm the weekly charge, any adjustments to Mrs J’s financial assessment and the current balance outstanding; they were not invoices. Mr D remained dissatisfied.
27. The Personalisation team wrote to Mr D on 23 October 2019. The letter noted Mrs J had been receiving NHS funded continuing healthcare since 3 September 2019 and would no longer be charged. A final reconciliation had been done from 11 March 2019 to 2 September 2019 showing Mrs J had been undercharged by £301.02. The letter said Mr D had “declined reviews” of Mrs J’s care; Mr D disputes this.
28. There was further correspondence between Mr D and the Payments team in November 2019. Mr D said he considered the Council had failed to explain why additional charges, which had not been agreed, had been incurred and he was concerned that the Council had allowed carers to stay longer than 10 minutes without monitoring or reviewing this.
29. Mr D made a second formal complaint in January 2020, he addressed this to the Personalisation team. The Council sent three responses to Mr D: the Payments team wrote on 31 January 2020, social care wrote on 6 February 2020 and the Personalisation team sent a “Stage 2” reply to Mr D’s complaint on 10 March 2020.
30. The replies said some of the visits to Mrs J took longer than 10 minutes to ensure that Mrs J’s medication was taken correctly. Carers had a duty to ensure that a service user is left safe and comfortable. These “overstays” were therefore considered to be appropriate and legitimate. The Council considered it had explained the charges to Mr D and did not uphold his complaint.
31. There was further correspondence; Mr D asked for “a copy of the agreement signed by me on which the charging is based, or a list of the extra services which it is claimed were supplied.”
32. In April 2020 the Council made a “without prejudice” offer to reduce the amount Mrs J owed by 25% in order to draw the matter to a close. Mr D declined the offer.
33. In June 2020 the Council accepted it had not formally advised Mr D about the reconciliation process until July 2018. It therefore offered to waive the extra charges for the period October 2015 to May 2018. This was a reduction of £1,013.34 of the outstanding charges. Mr D complained to the Ombudsman in July 2020.

My findings

34. Mr D has two main concerns which are at the heart of his complaint:
• Information about the charges was unclear.
• The length of the home care visits was either unjustified or should have triggered a review of Mrs J’s needs.
35. In relation to how the charges were explained. Mrs J had been receiving home care since at least 2012 and was a self-funder. Mr D was therefore aware that she had to pay for this care. The Council’s policy says that self-funders pay for the care they actually receive, not just for the hours set out in the care and support plan. There is therefore no fault by the Council in charging Mrs J for the actual cost of her care.
36. However, it is unclear whether the Council had made Mr D aware before July 2018 that the Council would reconcile the amounts it had charged Mrs J with the care she had actually received. This is fault and I therefore welcome the Council’s offer to waive the extra charges of £1,013.34 for the period October 2015 to May 2018. This is an appropriate and proportionate remedy.
37. Mr D complains the Council’s invoices were inadequate. The Council issued statements, rather than invoices, so the information requirements are different. The Guidance does not require councils to issue invoices and I find there is no fault by the Council. However, I agree that it would be helpful if the statements specified the hourly rate, the travel cost per visit and the actual number of hours charged for. This would make it easier for service users or their representatives to check the amounts they are being charged.
38. Mr D says the Council failed to explain the charges and made errors in the charging which it also failed to explain. He says the Council did not respond properly to his queries. The correspondence was complicated by the fact that Mr D wrote to different teams at different times.
39. I do not intend to detail each of his queries and the Council’s responses to them here. I can see that the Council wrote to Mr D several times to explain its reconciliation process and that the charges were for the cost of the care Mrs J had received, rather than the planned hours. It sent him the home care provider’s call logs and a spreadsheet showing the actual hours of care provided to Mrs J each week, the weekly actual cost and the planned hours and costs. It explained that the visits had taken longer as carers had been unable to administer the medication properly in 10 minutes. I therefore do not find that the Council failed to explain the charges to Mr D.
40. It did make one error when it reconciled what Mrs J had been charged with the care she received, but it then wrote to Mr D to say this had happened. I cannot see that this caused any injustice to Mrs J or Mr D.
41. Mr D feels the carers did not need to stay for longer than 10 minutes. This is not for me to determine. The carers must ensure they provide the care required. I would be concerned if the Council had an approach where carers had to leave a service user “on time” but the person had not been properly cared for. I note the social worker considered the visits needed to be longer.
42. Mr D says if this extra time was needed, it should have triggered a review of Mrs J’s needs. Mr D could have requested a review at any time. In addition, the Council should review a person’s needs every twelve months. There was a delay from November 2018 to April 2019 in the Council’s annual review of Mrs J’s needs, but I do not consider this caused Mrs J a significant injustice. This is because, whilst in April 2019 the social worker found the visits needed to be longer, Mr D disagreed and there was no change to Mrs J’s care plan until June 2019.
43. Councils are also required to carry out a review if they consider the person’s needs have changed.
44. In response to my enquiries, the Council explained that the care provider uses electronic call monitoring and sends a weekly schedule of actual hours of care provided. This is checked against what has been commissioned. The Council said it allows up to a two hour a week “tolerance” on the amount of care being charged for. This means in Mrs J’s case that the Council could charge her for up to four hours 40 minutes (4.67hrs) of care per week (or four hours 55 mins (4.92hrs) after June 2019). Anything over that would only be paid if the social worker had requested a change to the service.
45. I would therefore expect a care needs review to be “triggered” if a person was regularly receiving more than two hours extra care each week. In Mrs J’s case, she did not receive more than the two hour tolerance each week. The Council therefore had no evidence her condition had deteriorated and no need to carry out a review.
46. I have carefully considered the Council’s approach and I consider it to be good practice. Whilst a care and support plan sets out the support a person needs, it is not an exact science to be precise about the number of care hours an individual may need on any given day. A two hour a week tolerance gives an appropriate amount of flexibility. The care provider’s electronic call monitoring means the Council can be assured the person is not being charged for unused hours. I do not find any fault in the way the Council monitors the care provider’s charges.
47. Mr D complains he had not agreed to extra services being provided or charged for. Mrs J was not being charged for “extra” services, but for the cost of the actual care she had received, in line with the Guidance and the Council’s policy. The Council is not required to agree this with Mr D. As I have said above, it would be poor practice and potentially risky for a carer to leave a person requiring care.
48. I have reviewed the Council’s spreadsheet which shows the actual costs of Mrs J’s care. I am satisfied it is accurate. Mr D should now pay the outstanding amount.

Agreed action

49. The Council has agreed to waive the extra charges of £1,013.34 for the period October 2015 to May 2018.

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Final decision

50. 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