Summary: Ms X complained the Council failed to provide her mother, Mrs F with appropriate financial support when she failed to pay her assessed care fee contributions between 2016 and 2020 which led to arrears of over £34,000. The Council was at fault when it failed to deal with Mrs F’s debt in line with its debt policy. However, this did not cause Mrs F an injustice because she received the care and support and was fully aware the debt was accruing and of her requirement to make her assessed contributions.

The complaint

1. Ms X complains about the Council’s handling of her mother, Mrs F’s non-residential care fees between 2016 and 2020. Ms X said the Council failed to intervene when Mrs F failed to pay her contribution which led to arrears of over £34,000, which she said it is now unfairly pursuing.
2. Ms X said the matter is causing Mrs F significant distress and financial uncertainty.

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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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. Although Mrs F’s debt has accrued since 2016 the Council only decided to take formal action in 2020. As the matter is ongoing, I consider the core matter of the debt is not late. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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

7. I considered Ms X’s complaint and the information she provided.
8. I considered the Council’s response to my enquiry letter.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

The Care Act 2014 and charging

10. In 2014, the Government introduced the Care Act. This legislation replaced all previous guidance about how councils assess and provide care for adults in need. It includes guidance on charging for care.
11. The Care Act states councils have discretion to charge people for the care they receive. If a council decides to charge for care, it must complete a financial assessment. If a person refuses a financial assessment they must self-fund their care. In making decisions on charging the Care and Support Statutory Guidance sets out that the approach to charging for care and support needs should be clear and transparent, so people know what they will be charged.
12. Councils should clearly discuss with the person or their representative at the outset that care and support is a chargeable service and that where the person has been assessed as being able to afford to do so, they will be required to contribute to the cost of that care.
13. Where a person has accrued a debt, a council may use its powers under the Care Act to recover that debt. In deciding how to proceed, the local authority should consider the circumstances of the case before deciding a course of action. For example, a local authority should consider whether this was a deliberate avoidance of payment or due to circumstances beyond the person’s control.

Financial assessment

14. Following a care needs assessment the council must offer a financial assessment to decide who will pay for the eligible care needs. Councils can charge for care services. The council should provide clear information about charges and how it assesses them at the time it identifies care needs.
15. Persons who have over £23,250 of eligible capital will be expected to pay for the full cost of their care fees. However, once their capital has reduced to less than £23,250, they only have to pay an assessed contribution towards their fees.

The Council’s debt policy

16. The Council’s policy is to collect all sums of debt quickly, efficiently and in full. It says this is to maximise the funding available for service delivery and fulfil its obligation to protect public monies.
17. The policy states the Council will adhere to ‘Principles of Good Practice’ in managing income and debts. These principles include
• Timely, appropriate and consistent debt collection and legal action
• Regular monitoring, early recognition and timely action in bad debts.
18. The Council has an initial collection process which it says applies to all debts owed to it:
• Day 1 – invoice raised
• Day 21 – First reminder letter
• Day 35 – Final reminder
• Day 49 – Further collection action.
19. The Council says this process ensures early contact is made and maintained with all customers owing payment. It says the reminder letters will highlight and reinforce the requirement to pay and give information and guidance on how to pay.
20. The policy outlines how it categorises debts after day 49. Those with debts over £1500 are identified as appropriate for immediate legal action. Where appropriate the policy says it will take legal action as soon as the initial reminder phase is over.
21. The Council’s debt policy has a specific section on dealing with care debts. This involves taking extra efforts to make contact with the person to ascertain why they are not paying their contribution to care and support. The policy says the Council must ensure the person in debt has mental capacity before deciding whether to proceed and take legal action, which a senior officer must approve.

What happened

22. In 2016, Mrs F lived at home and received home visits from a care agency (the care provider) to meet her care and support needs. Mrs F had a private arrangement with the care provider and paid her own fees.
23. During 2016 the care provider contacted the Council because Mrs F was struggling to pay her care fees. The Council, in the interim arranged care and support for Mrs F to ensure her care and support needs continued to be met.
24. The Council carried out a financial assessment of Mrs F’s finances. Records show the Council visited Mrs F at home to explain the financial assessment and notify her of her care fee contributions. Case notes recorded Mrs F understood and agreed to pay the assessed contribution.
25. Records show the Council sent monthly invoices to Mrs F outlining the contributions due. Mrs F’s care and support plan shows she had full mental capacity and was able to manage her own affairs. However, records show Mrs F made no payments between June and December 2016, therefore a debt began to accrue.
26. Mrs F made one payment in January 2017 however records show she contacted the Council and said she could not afford to pay the arrears. Mrs F asked the Council to set up a repayment plan so she could pay back the arrears. The Council sent the case to its financial assessment team. It continued to send Mrs F monthly invoices and Mrs F continued to receive her care package.
27. There is no evidence of further contact from the Council until Mrs F called it in May 2017 and offered to pay £50 per month to clear the arrears. The Council rejected this stating it would take over 10 years to clear the debt. Mrs F gave the Council permission to call Ms X about the matter. Ms X told the Council that she did not deal with Mrs F’s finances. The Council told Ms X it had assessed Mrs F as being able to afford her contributions. The Council recorded Ms X said she would speak to Mrs F and call it back.
28. The Council’s records show it tried to contact Ms X about the matter between June and October 2017 without success. The Council said it sent Mrs F a letter in October 2017 which warned that it may take legal action if she did not pay back the debt.
29. The Council made no further contact with Mrs F about her arrears between October 2017 and January 2019. It told us it had concentrated on other debt cases during this period. However, the Council’s case notes show it visited Mrs F on several occasions during 2018. The notes show it carried out a care review in June 2018 and discussed finances with Mrs F. It recorded it spoke with Ms X in July 2018 who said Mrs F was quite capable of managing her own finances. The Council continued to meet Mrs F’s care and support needs and continued sending her monthly invoices.
30. In January 2019 Mrs F’s care fee arrears stood at just under £20,000. Mrs F agreed to setup a direct debit to pay her contributions going forward. The records show Mrs F paid her assessed contributions by direct debit between January and June 2019.
31. In June 2019 the Council received notification that Mrs F had cancelled her direct debit agreement. The Council attempted to make contact with both Mrs F and Ms X but was unsuccessful. It wrote to Mrs F in September 2019 informing her the direct debit was cancelled which meant it could not take payment of her assessed contributions. The Council continued sending Mrs F invoices and continued providing the direct payment so her care and support could continue.
32. The Council said it received no further response from Mrs F about the accruing debt, so it passed the matter to its legal department in October 2019. There is no evidence showing how or whether this progressed until June 2020 when case notes show it asked for social worker intervention. Case notes record further emails were sent to social services in July and August 2020 asking for a social worker to visit Mrs F.
33. In September 2020 the Council asked its financial head of services for permission to enforce Mrs F’s debt. The head of service asked for confirmation of whether Mrs F had full mental capacity and raised concerns why her debt was not reviewed previously due to the size of the debt which by this time had increased to over £30,000.
34. In November 2020 a social worker visited Mrs F. They recorded that Mrs F had capacity and was well aware she needed to contribute to her care. The Council recorded Mrs F said she was willing to pay the money back. The Council sent Mrs F a final demand for payment of her care fee arrears which now stood at £34,000.
35. Ms X complained to the Council on behalf of Mrs F about the large care fee arrears and its demand for payment. Ms X said the Council was aware Mrs F was accruing debts in 2016 and should have dealt with the matter much earlier. Ms X said Mrs F had not received any invoices. Ms X asked why the Council let Mrs F’s debts build to such a high amount without supporting her.
36. The Council responded to Ms X’s complaint. It confirmed the debt had built between June 2016 and December 2020 however it said it had tried to resolve the matter several times during that period. It said Mrs F had made sporadic payments and was aware of her responsibility to pay her assessed contributions. The Council provided a chronology of its contact with Mrs F about her debt. It confirmed it did not uphold the complaint.
37. Ms X remained unhappy with the Council’s handling of the matter and complained to us.

My findings

38. Social care is not free and the Care Act 2014 gives councils the power to charge people for their care and support. When the Council started commissioning Mrs F’s care in 2016 it carried out a financial assessment and records show Mrs F was fully aware of her responsibility to pay her assessed contribution. The sporadic payments she did make between 2016 and 2019 support this. Records show Mrs F had full mental capacity and was able to manage her own finances.
39. The Council carried out yearly financial assessments and sent Mrs F monthly invoices, none of which were returned as undelivered. Even though Mrs F continued failing to make her assessed contribution the Council continued paying for the care on her behalf to ensure her care and support needs were met with no gaps. As Mrs F received the care and support between 2016 and 2020 there is no fault in the Council requiring her to pay her assessed contribution, backdated to 2016.
40. While there is no fault in the Council requiring repayment of the debt the evidence shows it missed opportunities to prevent it accruing to such a large amount. It made no contact with Mrs F about the debt between October 2017 and January 2019. It passed the matter to its legal department in October 2019 however it did not progress it any further until it sent a final invoice over a year later in November 2020. As outlined in paragraphs 16-21 the Council’s debt policy is to manage debts timely and consistently with early action on bad debts. It makes no distinction between care debts and other debts. There were large gaps where the Council let the matter drift despite being aware the debt was growing. Despite Mrs X’s debt being well above the threshold for immediate legal action in 2017, it failed to act until the end of 2020. The Council failed to deal with Mrs F’s debt in line with its debt policy and let the matter drift. That was fault. Had the Council managed Mrs F’s debt in line with its policy it may have prevented the debt from accruing to such a large amount.
41. There is no dispute that the amount the Council has demanded is correct and as already explained Mrs F had her care and support needs met with no gaps. Mrs F was fully aware the debt was accruing as early as 2016. She failed to make repayments and continued failing to pay her assessed contribution, despite being aware of her requirement to do so. Mrs F therefore contributed to the build up of debt. So, although I found fault, I cannot say it caused Mrs F an injustice. Mrs F and Ms X should work with the Council to arrange an appropriate repayment plan for the debt.
42. Although the fault did not cause Mrs F a significant injustice, failure to manage accrued debts in line with its debt policy may cause or be causing an injustice to others. I have made a recommendation to address this below.

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Agreed action

43. The Council agreed within three months of the final decision carry out a review of how it manages and processes debts which meet the threshold as appropriate for immediate legal action as outlined in its debt policy. The review should identify any actions required to ensure more timely action is taken against customers with debts over £1500 and prevent debts accruing to large amounts.
44. The Council will provide us with evidence it has carried out this review, including any actions identified and timescales for implementation.

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Final decision

45. I completed my investigation. I found fault however it did not cause Mrs F an injustice. The Council agreed to my recommendation to prevent recurrence of the fault and reduce potential injustice to others.

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Investigator's decision on behalf of the Ombudsman