Summary: Mr X complained the Council charged him for care he was not aware he was going to be charged for. He said the Council continued to charge him even after he asked it to significantly reduce the amount of care provided because he did not want it, and the carers could not use the inadequate equipment. He said he was surprised and distressed to receive a large bill for care he did not ask for. We find the Council at fault. This fault caused Mr X injustice. The Council has apologised to Mr X. The Council has agreed to write off some of his outstanding bill, make a payment to Mr X to reflect the injustice caused, and make improvements to its service to avoid this happening in future.

The complaint

1. Mr X complains that the Council incorrectly invoiced him for care costs. He says he did not ask for home care, and when he asked about payment the Council told him not to worry about it. He says he asked the Council to reduce the number of daily carers’ visits because they could not complete care tasks in three out of four care visits, but the Council would not agree to it. He says he was surprised and distressed to receive a large bill for care he did not ask for.

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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)
4. When investigating complaints, if there is a conflict of evidence, the Ombudsman may make findings based on the balance of probabilities. This means that during an investigation we will weigh up the available evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

5. I considered the information and documents provided by Mr X and the Council. Mr X and I discussed his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
6. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Charging for care

7. Councils can charge for care and support services they provide or arrange. (Care Act 2014, section 14)
8. Councils must assess a person’s finances to decide what contribution they should make to a personal budget for care. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)
9. The Care and Support statutory guidance (‘the guidance’) sets out principles for charging for care and support. One of these principles is that the approach to charging should be clear and transparent so people know what they will be charged.
10. The guidance also says that local authorities should make sure there is sufficient information and advice available to make sure that the person or their representative can understand any contributions they are asked to make.

Providing care

11. The Care Act 2014 (‘the Act’) says that it is a local authority’s duty to promote an individual’s wellbeing. ‘Wellbeing’ includes a person’s control over their everyday life.
12. The government issued guidance: ‘Delivering Care and Support Planning: supporting the implementation of the Care Act 2014’. This guidance says that the person must be genuinely involved and influential throughout the care planning process.
13. One of the guiding principles of the Act is that developing a person’s care and support plan should be person-centred and person-led. The plan must detail the person’s needs that are to be met, and how those need will be met. The plan must also be proportionate to the needs.
14. The Care Act has certain principles that run through it. These include:
• promoting wellbeing (see paragraph 11);
• the importance of beginning with the assumption that the individual is best-placed to judge their own wellbeing;
• considering the individual’s views, wishes, feelings and beliefs; and,
• the need to ensure that decisions are made having regard to all the individual’s circumstances.

What happened

15. In 2019, Mr X had a fall and was admitted to hospital. Mr X was asked if he wanted a care package to support him when he was discharged. Initially, Mr X declined this.
16. In October, a social worker met with Mr X and his wife, Mrs X, in hospital and discussed a care package for his discharge. The social worker discussed Mr X’s finances with Mr and Mrs X. The social worker produced a care and support plan which outlined the care that would be put in place, and Mr X’s financial contribution to his care.
17. The care and support plan outlined that Mr X would get four daily visits from two carers, each visit would be 30 minutes. The plan said carers would assist with transferring Mr X from bed to chair/chair to bed using a hoist and sling. This task needed three people: two carers and Mrs X. The carers would also assist with toileting and personal care.
18. Also in October, the Care Provider began caring for Mr X.
19. The Council did a financial assessment for Mr X. It assessed that, because he had capital over the limit set out in law, Mr X would be responsible for the full cost of his care.
20. The Occupational Therapist involved with Mr X’s care visited him in November. She noted that the sling (used with the hoist) was “no good”. For this reason, the existing hoist was not in use.
21. Care records show that in November Mr X told carers that he wanted to reduce the number of daily care visits because he did not need them. Carers told Mr X to raise it with the Council.
22. In December, the Council reviewed Mr X’s care and support plan. The review said that Mr X could not be transferred from bed to chair/chair to bed because the sling was not appropriate. The review noted that Mr and Mrs X wanted to reduce the amount of care visits. The Council told them it needed to speak to the Care Provider and Occupational Therapist before making any decisions to remove care. The review said that following the Council’s reassessment, the Care Provider and Occupational Therapist recommended the care package did not change.
23. Shortly after this review, Mrs X called the Council asking again to reduce the care package. She said they did not want or need the amount of care in place.
24. Later in December, Mr X received his first invoice for his care costs.
25. In January 2020, Mr and Mrs X again asked the Council to reduce the care package because the cost was too high and because carers could not provide the care needed because the hoist and sling did not work. They said they wanted one daily care visit, not four.
26. The Council agreed to reduce the care package to one daily care visit.
27. The next day, the Council reviewed Mr X’s care and support plan. The review said that Mr and Mrs X said they were paying for a service they did not need. It said Mrs X provided the majority of Mr X’s care so carers were not needed after the morning care visit.
28. A few days later, carers began providing care once a day, in the morning, as Mr and Mrs X requested.
29. Shortly after this, Mr X complained to the Council that he was told he had to have the care package, but he did not want it and often did not need it. He said each time he or Mrs X asked about care costs, the Council told them not to worry.
30. In its complaint response the Council said that Mr X asked for support in October. It said Mr X acknowledged that he had savings over the capital limit, and agreed for a care package to start when he was discharged from hospital.
31. The Council said the Occupational Therapist had visited Mr X in hospital to discuss equipment he needed at home. The Council said the Occupational Therapist told Mr X he would not be charged for the cost of the equipment. It said it understood how this could easily have been misunderstood when care costs are chargeable.
32. The Council said the care and support plan was written with input from Mrs X, and the plan set out how much the care costs would be each week.
33. The Council said when it reviewed Mr X’s care package in December it did not identify any concerns or changes to the care being provided. It said the outcome of the review was to maintain four daily care visits.
34. Mr X responded to the Council. He said the Council never told him how much he would have to contribute to his care costs, despite asking more than once. Mr X said the hoist was not successful because of the discomfort it caused. He said this meant carers were still visiting him but were not providing care on three out of the four daily visits. He said Mrs X was his main carer.
35. Mr X then complained to the Ombudsman.

Analysis

Request for care package

36. Mr X complains that he did not ask for the care package that was put in place when he was discharged from hospital.
37. I have seen the records from the assessment completed by the social worker at the hospital. The records say that Mr X “is in agreement to have support on discharge”. They also say, “Mr [X] will require a package of care x4 a day double up on discharge. Wife is in agreement to support.”
38. The records from the following day show that the social worker had a further discussion with Mrs X and provided an update to Mrs X about “the request for funding”. The records say:

“Mrs [X] stated that [Mr X] has savings slightly above [the Council’s] threshold and would like support in arranging [a] package of care and also would like a financial assessment.”

39. There is no evidence that the Council told Mr X he had to have this care package.
40. For these reasons, I do not agree with Mr X that he did not ask for the package of care. Further, I find that Mr X could have declined the package of care if he did not want it, as he did when he was initially asked about care and support.
41. Therefore, I do not find the Council at fault here.

Care costs

42. Mr X complains that the Council incorrectly invoiced him for care costs. He says the Council did not tell him how much he would be expected to pay towards his care costs.
43. The records show that the Council discussed Mr X’s finances with Mr and Mrs X. However, there is no nothing in writing to say it explained to Mr or Mrs X that he would be expected to pay a contribution to his care costs. The Council accepts it does not have any signed documents which show Mr X was told he would have to contribute.
44. The records should be clear about exactly what was explained. There is nothing to show what the Council explained to Mr or Mrs X. The guidance says the approach to charging should be clear and transparent so people know what they will be charged. However, there is no record of the information and advice the Council gave to Mr or Mrs X to make sure they understood about charging.
45. The Council failed to have proper records about what was discussed with, or explained to, Mr and Mrs X, in line with the guidance. This is fault. The fault caused Mr X uncertainty about what he would be expected to contribute to his care costs, which is injustice.

Reducing care visits

46. Mr X complains that he asked the Council to reduce the number of daily carers’ visits because they could not complete care tasks in three out of four care visits, but the Council would not agree to it.
47. The care and support plan outlined the tasks for carers to complete to provide the care Mr X needed. A large part of the care to be provided was transferring Mr X from bed to chair/chair to bed using the hoist. It was clear in November the sling was inadequate for Mr X’s needs. This meant the hoist could not be used to transfer Mr X.
48. The other main care tasks were personal care and assisting Mr X with his toileting needs which, apart from the first visit of the day, Mrs X was providing rather than the carers.
49. In November, records show Mrs X asked carers to reduce the care package. They told her to contact the Council. The Care Provider’s records note Mr X told carers they were not needed in well over half of the three later daily visits. (I have not considered the morning visits because Mr X is satisfied that he needs one daily care visit in the morning.)
50. In December, at the care and support plan review with the Council, Mr and Mrs X asked the Council to reduce the care package. The review noted that Mrs X supported Mr X’s toileting needs. At this review, the Council did not agree to Mr X’s request to reduce the care visits, even though he was paying for his own care. The Council’s reason for this was because the Care Provider and Occupational Therapist recommended the care remain unchanged.
51. It was clear carers could not provide a large part of the care as set out in the care and support plan because of the inadequate equipment and because carers were not needed for other personal care tasks most of the time. It was clear the Council was aware Mrs X provided most of Mr X’s personal care and toileting needs.
52. I have also considered the length of the three later daily care visits in November (these were meant to be 30 minutes each). The records show that nearly one third of the visits were 20 minutes long and nearly one third were less than ten minutes long. Two care visits were two minutes long, and one was three minutes long. On many occasions, the carers noted in the records that they were not needed, which supports Mr X’s version of events.
53. There is no evidence that the Council considered or reviewed Mr X’s care records when reviewing his care and support plan, and when considering his request to reduce the care package in December. Had the Council done so, it would have seen how frequently Mr X told carers they were not needed.
54. Care and support plans should be person-centred. Mr X should have been influential through the planning and reviewing process. A key principle of the Care Act is that the individual is best-placed to judge their own wellbeing. Another key principle is the need to make sure that decisions about care are made having regard to all the individual’s circumstances. The Council failed to do this, which was fault.
55. The Council failed to make sure its decision (not to reduce the care package) had regard to all of Mr X’s individual circumstances: the hoist did not work so carers were not needed to perform that task, Mrs X provided most of Mr X’s personal care, and Mr X was paying for his own care. This is fault.
56. The Council should have reduced Mr X’s care package in December when he requested it. A month later, in January, the Council agreed to reduce Mr X’s care package as he requested. It did this after it discussed the risks of reducing his care package with Mr X and was satisfied he understood the risks. The Council could have done this a month earlier, when Mr X first asked to reduce the care package.
57. This fault caused Mr X injustice, in that he has been charged for a month’s care (three of the four daily visits) that he did not want or need because the Council failed to act on his request. I have considered the care provided from December (when the care package should have been reduced to once a day in line with Mr X’s wishes) and January (when the care package was reduced as he requested). Specifically, I have considered the care provided in the three later daily care visits.
58. In this period, there were 105 care visits. Carers provided care on eight of these 105 visits. For the other 97, Mr X told carers they were not needed. They provided either minimal care on these occasions or, more often, none at all. This is evidence that Mr X did not need or want this amount of care but he was still being charged for it.

Asking about payment

59. Mr X complains that when he asked about payment, the Council told him not to worry about it.
60. There are no records which show what the Council told Mr X. However, the records show that Mr X was told he would not be charged for the cost of equipment.
61. As I have said above, if there is a conflict of evidence (or, as in this case, a lack of evidence) the Ombudsman may make findings based on the balance of probabilities. This means that we will weigh up the available evidence and base our findings on what we think was more likely to have happened.
62. In this case, I find it more likely than not that Mr X is confusing the advice from the social worker (that he would not have to pay for his equipment) with the discussions around his care package and the associated costs. These discussions were held at around the same time.
63. I therefore do not find that the Council told Mr X not to worry about care costs. So, I do not find the Council at fault here.

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Agreed action

64. The Council has apologised to Mr X in writing for the uncertainty caused by not knowing how much he would have to contribute to his care costs and for not acting on his request to have his care package reduced in December.
65. Within four weeks of this decision, the Council has agreed to make a payment to Mr X of £200. This is to reflect the time and trouble he and Mrs X went to in repeatedly asking the Council to reduce the care package he paid for.
66. Within four weeks of this decision, the Council has agreed to write off £1959.40 from Mr X’s outstanding bill for his care. In arriving at this figure, I have considered the fact that the Council should have reduced Mr X’s care, in line with his wishes, in December. This amounts to the 97 of the 105 visits the Council charged him for from December to January where no care was provided, or the carers were not needed.
67. Within three months of this decision, the Council has agreed to review with staff the way they record discussions and explanations about charging so it can evidence that contributions have been explained and the person understands. This would avoid any future similar recurrence.
68. Within three months of this decision, the Council has agreed to remind staff (including management) that if someone asks for a reduction in care they must consider the request in line with the Council’s duties under the Care Act and the principles that run through the Act (this is particularly important if the person pays for their own care). Specifically:
• to promote that person’s wellbeing including that person’s control over their everyday life;
• the importance of beginning with the assumption that the individual is best-placed to judge their own wellbeing;
• considering the individual’s views, wishes, feelings and beliefs;
• the need to ensure that decisions are made having regard to all the individual’s circumstances; and,
• and the guiding principle that the care and support plan should be person-centred and person-led.

69. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

70. I have completed my investigation. I uphold Mr X’s complaint because I find fault causing injustice. The Council has agreed to take action to remedy the injustice caused and to prevent a recurrence.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman