East Sussex County Council (20 002 657)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 09 Mar 2021

The Ombudsman's final decision:

Summary: An advocate complained on behalf of Mr X about how the Council communicated changes to the charges for care it provides. There is no fault in how the Council communicated the changes including the decision not to carry out a face to face assessment. There was fault in respect of the setting up of a direct debit. The Council has apologised for the faults and credited an amount to Mr X’s account to acknowledge the time and trouble associated with this.

The complaint

  1. An advocate, Ms Y complained on behalf of Mr X, about charges for his care services. In particular she complained the Council failed to:
  • Conduct a face to face financial assessment;
  • Support him to understand the reasons for the financial assessment and the charges;
  • Communicate with him before sending invoices; and
  • Set up the direct debit mandate three times.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by the complainant’s representative;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • discussed the issues with the complainant’s representative;
    • sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

  1. Mr X is a pension age adult with a progressive disease causing muscle weakness and atrophy. Mr X has been assessed as having mild difficulties in communicating and expressing himself. Mr X has difficulty in respect of managing and understanding his finances. Mr X lives alone but his brother provides regular support. Mr X receives care services including homecare support and meal deliveries.
  2. The Council first completed a financial assessment in July 2007. It says this was a face to face assessment. The outcome being that Mr X was not required to make any financial contribution towards his care. The Council notified Mr X in writing of this decision and said an annual review would be completed. It asked him to inform the Council of any changes to his financial circumstances.
  3. The Council says it carried out annual reviews every April based on information provided by the Department for Work and Pensions (DWP). This review is a desktop exercise and does not involve a face to face meeting.
  4. The financial review in April 2019 resulted in Mr X being charged £1.45 per week. Mr X’s brother contacted the Council saying he was concerned Mr X had not been notified of this change. The Council says that as Mr X’s brother is neither a DWP appointee nor Power of Attorney it could not discuss the financial assessment with him. It provided information about Mr X giving permission for his brother to act on his behalf.
  5. The Council says that because concerns had been raised, it reviewed Mr X’s case. It found that Mr X started receiving the enhanced rate personal independent payment (PIP) from April 2018 and also an increased rate of pension credit. There is nothing to suggest Mr X notified the Council of this change in circumstances. It is also not clear why this change was not noticed by the Council in 2018 if it carried out a financial review annually.
  6. The Council says that its charging policy states it will backdate charges to the start of the increase when it is not informed of the changes. However, in this case it exercised its discretion and did not backdate the charges to April 2018 instead it applied them from April 2019. This resulted in an increased weekly charge of £105.25.
  7. It wrote to Mr X explaining why it had carried out a further financial assessment. The letter included a breakdown showing how the weekly contribution is calculated. The letter also included information about how to claim for Disability Related Expenditure and how to make payments. It said the easiest way to pay is by direct debit and included a direct debit mandate form. The letter finished by saying to contact it within 20 days if he did not agree with the outcome or could not afford the contribution.
  8. Mr X’s brother assisted him to set up the direct debit to pay the care charges. The Council says that initially it told him that it could accept an electronic copy of the direct debit mandate. This was incorrect as the digital process had not been set up at that time. It took the Council two months to correct this error following contact from Mr X’s brother.
  9. Mr X’s brother made a formal complaint and while the Council was investigating it, a new direct debit mandate was completed. It requested payments to start from 1 October 2019. On 8 October Mr X’s brother contacted the Council requesting it to set a limit on the amount that could be taken by the direct debit. The Council explained on 25 October this is not possible because he has an emergency call service that is invoiced on a quarterly basis meaning that invoice will be higher. The Council said Mr X’s brother could call to discuss alternative payment methods.
  10. Mr X’s brother sent in another direct debit mandate in November 2019. Due to the issue of whether to include a limit on the direct debit, the Council did not act to set it up. By the time the Council tried to set it up, its digital system had been introduced and so the direct debit form returned in November was not valid. The Council contacted Mr X in March 2020 explaining the issues. It apologised and offered a £50 time and trouble payment.

Analysis

  1. Ms Y has made four specific complaints, I will deal with each in turn.

Failure to conduct a face to face financial assessment

  1. The information provided indicates a face to face financial assessment was carried out in July 2007 when Mr X was first assessed for care charges. Following this a yearly desktop review was completed.
  2. After completing the yearly review in April 2019, the Council wrote to Mr X in a similar format to the previous yearly reviews. The only difference was that a charge was applicable. I can appreciate that Mr X was querying why there was a charge after many years of not having to make a financial contribution. Even though the assessed charge was only £1.45 at that point, the letter did not explain in detail what had happened. After a query from Mr X’s brother, the Council did provide a fuller explanation.
  3. While I appreciate Mr X was confused by the first letter dated 1 April 2019, I am not persuaded it was fault for the Council to notify Mr X of the charge by letter rather than face to face. There is no duty on the Council to carry out a face to face assessment and it had completed several yearly reviews without a face to face assessment.

Failed to support Mr X to understand the reasons for the financial assessment and the charges

  1. The Council says that it works on the basis of a presumption of mental capacity. It said it had no basis to think Mr X did not have capacity to deal with finances and there was no DWP appointee or lasting power of attorney in place. It therefore only dealt with Mr X’s brother once it received written consent from Mr X to do this.
  2. I note that once contacted by Mr X’s brother, the Council did carry out a further review and provided a more detailed explanation. It was after doing this further review that the big change in Mr X’s financial contribution occurred. I am satisfied the letter dated 16 May 2019 provides a clear explanation of why the increase occurred including a breakdown of how it assessed his income. The letter invited Mr X to phone or email if he had any questions or needed help to understand the assessment. I have not seen any evidence to suggest Mr X took up this offer.
  3. As Mr X had mental capacity to deal with his finances, I am not persuaded there was fault in how the Council contacted Mr X about the changes in the financial assessment.

Failed to communicate with him before sending invoices

  1. The information provided shows the Council wrote to Mr X on 1 April explaining that following a review he had been assessed as needing to make a contribution towards his care charges. As explained about the letter was in a similar format to the review letter sent each year.
  2. The letter states that the charges will begin from the following week on 8 April 2019. It also states that invoices would be sent every four weeks in arrears. Therefore, I am satisfied the Council did not invoice Mr X before first writing to him to explain the review and that he had to pay a contribution.
  3. I find no fault on this complaint.

Failed to set up the direct debit mandate three times

  1. The information provided shows there was fault by the Council in respect of setting up a direct debit to pay for Mr X’s care charges. The first one submitted could not be used because the Council’s digital system was still in the process of being rolled out. After submitting a second form, there was a delay while discussions took place about putting a maximum limit on the amount that could be taken. There was also a delay in acting on the third form submitted in November 2019 by which time the digital system was in place and so the November form was not valid.
  2. I note the Council acknowledged fault in how it dealt with the direct debit forms. However, I am not persuaded the time taken to implement the direct debit was entirely due to fault by the Council. The information provided shows that it was trying to work with requests by Mr X and his brother regarding a limit on the amount taken. The Council didn’t implement the direct debit until this matter was resolved. As the delay was due to the Council trying to meet the requests of Mr X and his brother, I think it would be harsh to say all the delay was a result of fault.
  3. I appreciate the difficulties and delays in setting up the direct debit were frustrating. The Council has apologised and credited Mr X’s account with £50 to recognise this. I consider this to be a suitable remedy for the fault and I am not persuaded any further remedy should be sought on this issue.

Conclusion

  1. I have found fault in one of the four complaints made on behalf of Mr X. I am satisfied the action already taken by the Council provides an appropriate remedy for the injustice suffered as a direct result of issues with the direct debit mandates.
  2. I am aware that Mr X’s brother believes the Council should waive the arrears that have accumulated because of problems he has experienced. As I explained above, I consider a suitable remedy has been provided in this case. There is no basis to recommend the waiving of fees for services that have been provided to Mr X. In reaching this view I have taken into account the fact that Mr X did not notify the Council of his increased income and that the Council did not backdate the charges to the date his income increased even though its policy allowed it to do this.
  3. I consider Mr X and/or his brother should now contact the Council and make an arrangement to pay the outstanding arrears.

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Final decision

  1. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has already taken action that appropriately remedies any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman

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