Summary: Mr B complained that the Council issued a backdated invoice to his mother for care which he had tried to cancel and was often not provided. The Ombudsman found no fault on the Council’s part.

The complaint

1. Mr B complains that the Council issued a backdated invoice for over £4000 to his mother for care which he had tried to cancel and which was often not provided. He wants the invoice reduced to reflect this.

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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. 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

3. I have considered all the information provided by Mr B, made enquiries of the Council and considered its comments and the documents it provided.
4. Mr B 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

Legal and administrative background

5. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
6. A council must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person’s income below income support plus 25%. This is known as the minimum income guarantee (MIG) and ensures that people receiving Council-arranged care and support at home retain a certain level of income to cover their living costs. The Council can take a person’s capital and savings into account subject to certain conditions. If a person incurs expenses directly related to any disability he or she has, the Council should take that into account when assessing his or her finances. (Care Act 2014 Department Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)

Key facts

7. In September 2019 Mrs C was referred to the mental health social care team for a review of her eligible care needs having been diagnosed with dementia. She was already receiving a care package of two visits a day by carers: a morning visit to help her wash and prepare breakfast; and an evening visit to make sure she had eaten. Mrs C wanted to maintain her independence as much as possible. It was agreed this care package would continue and Mrs C would be seen annually for a review but the family would contact the team if there was a change in her needs.
8. In December 2019 Mrs C was hospitalised following a fall and the family requested a review of her care package. Mrs C was discharged from hospital in early January 2020 and a crisis care package was put in place whereby she would receive four visits per day. The social worker’s notes record that she advised Mr B and Mrs C that the care package was chargeable and Mrs C would be financially assessed to decide how much she was able to contribute towards the cost of her care. The social worker gave Mr B a financial assessment form to complete as he has power of attorney for his mother in respect of her property and financial affairs.
9. On 14 January 2020 Mr B returned the completed financial assessment form.
10. On 29 January 2020 the financial assessment team completed a financial assessment backdated to September 2019. A financial assessment officer wrote to Mr B explaining that Mrs C had been assessed as not having enough income and savings and so would not be required to contribute towards the cost of her care. The letter explained that a review would be completed within the year and she may then be required to contribute.
11. On 20 February 2020 the social worker completed a review. Mr B raised concerns that his mother was not eating properly or having a bath regularly. Mrs C said she was having a bath twice a week and she felt that was sufficient. Mr B also raised concerns that Mrs C was using the same clothes repeatedly and that the bathroom was not being properly cleaned. He asked for support once a week with cleaning. In light of Mr B’s concerns the social worker suggested a weekly cleaning service.
12. A financial assessment officer completed an annual review re-assessment on 11 November 2020. Whilst doing so, she completed a check on the Department for Work and Pensions’ (DWP) system to confirm Mrs C’s updated benefits. She noted Mrs C was awarded Attendance Allowance (AA) of £89.15 per week from 3 February 2020 and her Pension Credit had increased from £28.33 per week to £96.59 per week from 12 February 2020. Mr B says he had notified the Council that he had applied for AA in December 2019 but the Council says he did not do so.
13. As a result of Mrs C’s additional income she was assessed as having to contribute £33.65 per week from 10 February 2020, £101.25 per week from 17 February 2020. Her contribution increase to £110.35 per week from 20 April 2020 due to increases in her AA, Pension Credit (PC) and state pension payments. The financial assessment officer wrote to Mr B explaining this and issued an invoice for the backdated charges amounting to £4,225. The officer explained that Mrs C was liable to pay the backdated charges as it was the family’s responsibility to notify the Council of any changes to income and capital. She offered Mr B a payment plan so the invoice could be paid by instalments. She also advised that if Mrs C had any disability-related expenditure (DRE) he should provide evidence of this so the Council could consider a DRE allowance.
14. The Council’s notes show that on 19 November 2020 Mr B telephoned the finance team about the invoice. He said he was told Mrs C’s care would be free for eight weeks following her discharge from hospital. He also said the care provider was supposed to provide 14 hours care per week but the visits were only five or 10 minutes instead of the agreed 30 minutes. He said Mrs C had not needed the service for a long time and he had tried to cancel it several times but had received no response.
15. In view of Mr B’s comments, the financial assessment officer asked the care provider for a breakdown of the calls between February and November 2020. The officer went through the invoices from the care provider and was satisfied the care provided for this period was higher than Mrs C’s assessed contribution. So, she informed Mr B the invoice was correct.
16. The Council’s notes show Mr B telephoned again on 24 November 2020 saying he wanted to cancel the care package because he was concerned the family would have to pay for care that was not required. Social services agreed to complete a telephone review to ascertain how much care Mrs C needed.
17. The review was completed with Mr B on 3 December 2020. Mr B said Mrs C did not need four visits per day. He also raised concerns about the quality of care she was receiving. He said: Mrs C was not being showered frequently or supported to dry her hair and wear clean clothes; she was not being supported with medication as there were periods when medication was left over; and she was not always being supported with meals as there were ready-made meals and fresh items left unused.
18. The social worker raised these concerns with the care provider who explained that Mrs C was independent and had usually tended to her own personal care before carers arrived. She said carers prompted her to take medication but did not actually administer it. She also confirmed that Mrs C was always given support with meals but sometimes declined a ready meal or fresh items and would opt for soup instead. It was agreed the care provider would discuss with Mr B how much care Mrs C needed. The care provider confirmed she had no concerns about the level of care being reduced.
19. It was agreed the care package would be reduced to two calls per day. But, shortly afterwards, Mr B decided to cancel the entire care package saying the family would provide support instead.

Analysis

Mrs C’s contribution towards the cost of her care

20. The financial assessment completed in January 2020 showed that Mrs C’s capital was below the threshold of £23,250 and her income was state retirement pension of £137.17 per week and PC of £28.33 per week making a total of £165.50. Mrs C was not therefore liable to contribute towards the cost of her care because doing so would have reduced her weekly income below the MIG set by the Government.
21. In November 2020, when the Council discovered Mrs C’s benefits had changed, it completed a financial re-assessment backdated to February 2020 when these changes occurred. On 1 February 2020, Mrs C began receiving AA of £87.65 per week which increased her weekly income to £253.15. The weekly cost of her care at this time (four visits per day) was £238.28. The Council deducted a general living allowance (MIG) of £194.50 together with a £25 AA disregard from Mrs C’s income resulting in a figure of £33.65 which was the amount she was assessed as having to pay towards the cost of her care from 10 February 2020.
22. The Council completed a further financial assessment backdated to 17 February 2020. Mrs C began receiving increased PC of £94.18 per week from 12 February 2020 increasing her weekly income increased to £320.75. Her total allowances remained at £219.50. This resulted in an assessed charge of £101.25 per week.
23. In April 2020 the Council completed a further reassessment following an increase in Mrs C’s PC and state pension payments. As a result of these increases, Mrs C’s contribution increased to £110.35 per week from 20 April 2020.
24. It was Mr B’s responsibility to notify the Council of any change in Mrs C’s financial circumstances. This was stated on the financial assessment form he completed on 12 January 2020. Mr B says he notified the Council that he had applied for AA in December 2019 but I have seen no evidence to support this.
25. The Council was entitled to issue a backdated invoice because there is no evidence to suggest it was aware of the increase in Mrs C’s income until it completed the financial re-assessment in November 2020 and discovered this information from the DWP search. If the Council had been aware of the increase in Mrs C’s income when it happened (February 2020) it would have informed Mrs C of her contribution at that time.
26. I am satisfied the Council has acted appropriately by offering to set up a payment plan to help the family clear the debt.
27. Mr B says that, when his mother was discharged from hospital in January 2020, he was told the first eight weeks of her care would be free of charge. Re-ablement care can be free of charge for up to 6 weeks. But this would only have applied to the additional care and support put in place because of Mrs C’s fall. In any event, Mrs C’s contribution towards the costs of her care did not begin until 10 February 2020, almost 6 weeks after she was discharged. Her contribution was assessed as being £33.65 which is significantly less than the cost of the weekly charges for her original care package.
28. Mr B says the additional two visits put in place after Mrs C’s fall should have been cancelled after eight weeks. He says she should not have to pay towards the cost of these visits because she did not need them after February 2020 and he tried to contact social services to cancel them several times from March 2020.
29. Even if Mrs C’s care had been reduced back down to two visits per day in March 2020 this would not have altered her contribution. She would still have had to contribute £101.25 per week because the amount of a service user’s contribution is assessed on their income and not on the cost of the care. Mrs C’s contribution increased as a direct result of the increase in her income, not because of the increase in support hours. She was required to pay £101.25 towards the costs of her care if the costs were equal to or more than this amount. If the visits had been reduced to two per day, the cost would have been £138.74 per week which is still more than her contribution of £101.25 per week. Reducing the hours of support would not therefore have made any difference to her contribution.

Quality of care

30. Mr B says the care provided was inadequate so Mrs C should not have to pay for it. He raised some concerns in February 2020 so the Council offered to include a weekly cleaning service in the care package. Mr B did not raise any further concerns until November 2020 after he received the invoice from the Council.
31. Mr B says many of the visits by carers were only five or 10 minutes when they should have been 30 minutes.
32. In view of concerns raised by Mr B in November 2020, the Council’s financial officer went through the invoices from the care provider for the period February 2020 to November 2020 and was satisfied the care provided during this period was higher than Mrs C’s contribution so the invoice was correct.
33. Mr B has provided daily visit logs completed by the carers between 5 November 2020 and 10 December 2020. Some of the carers failed to record the times of their visits so I cannot reach a view on how long they were. Other visits vary between 10 minutes and 45 minutes.
34. I agree with Mr B that some of the visits were not as long as they should have been. However, the charges for care are for visits up to 30 minutes so the fact that some of the visits were shorter than this would not have affected the amount the Council paid for the care. So, Mrs C’s contribution towards the costs would not have been affected either.
35. Mrs C’s care plan from September 2019 stated that she was independent with all personal care tasks and showering but just required the carer to supervise her. It stated that Mrs C was able to heat her meals in the microwave and that her family helped with shopping.
36. The care plan stated that, at the morning call, Mrs C would usually be up and waiting for assistance with showering. Carers should assist her when required but Mrs C liked to be as independent as possible. It stated she may require some assistance with drying and getting dressed into clean clothes and with tidying up the bathroom. Carers should make the bed. The care plan stated that Mrs C was independent with medication but that carers should remind her to take it. They should also ask her if she would like a drink and some breakfast, ensure that she had water in the living room and leave a sandwich in the fridge for her to eat at lunchtime. They should also check she was wearing her Lifeline and that she was safe and well before leaving.
37. At the evening visit carers were required to give Mrs C a cup of tea and some water and sit and chat with her. They should also take the bins out once a week.
38. Having considered the daily logs provided by Mr B, I am satisfied these actions were undertaken by the carers.
39. Although some of the visits were shorter than 30 minutes, I do not consider this caused Mrs C a significant injustice as the care provider has explained that she was independent and had often completed personal care tasks herself so there was little left for the carers to do except check she was safe and well and help her with anything she needed. Mr B has also confirmed that Mrs C did not require four 30 minute visits per day. He felt that only two visits were required. So, the fact that Mrs C received four shorter calls would have been the equivalent to this. At the re-assessment in December 2020 Mr B, the social worker and the care provider all agreed that two 30 minute calls per day was enough to meet Mrs C’s needs.
40. Mrs C was assessed to pay a contribution towards the care costs, not the full amount. I would only consider a reduction in her charge to be appropriate if the amount of care she actually received in any week was less than the amount paid. While there is evidence of some short calls, I am satisfied Mrs C received care every week that cost more than her contribution. So, there is no basis to recommend a reduction in the cost and I consider the Council is entitled to pursue the amount outstanding.

Disability-related expenditure (DRE)

41. Mr B says the Council failed to deduct Mrs C’s DRE for incontinence pads. The Council has explained that it has not deducted an allowance for this because Mr B did not include any expenses for incontinence pads on the financial assessment form he completed in January 2020.
42. The Council’s records show that on 19 November 2020 when speaking to a financial assessment officer, Mr B advised that Mrs C pays for incontinence pads. The officer explained that previous costs incurred for incontinence pads could be considered if he provided evidence. However, as pads should be supplied free by the NHS, the Council would not pay future expenses for this. The officer explained to Mr B where and how to obtain pads free of charge.
43. On 22 November 2020 Mr B sent an email to the Council disputing the financial assessment but made no mention of expenses for incontinence pads.
44. On 24 November 2020 the Council wrote to Mr B requesting evidence for Mrs C’s incontinence expenses and Meals on Wheels. It requested the information again on 25 January 2021 but Mr B did not submit any evidence.
45. There are no grounds to criticise the Council for failing to include past expenditure on incontinence pads as DRE without having received evidence confirming these expenses.
46. I agree with the reasons why the Council does not usually include continence products as DRE. It is entitled to consider whether there is a reasonable alternative at a lesser cost or no cost, or whether it should be provided by another agency. National guidance is clear that, if continence products are needed, they should be supplied by the NHS free of charge.

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Final decision

47. I do not uphold Mr B’s complaint.
48. I have completed my investigation on the basis that I am satisfied with the Council’s actions.

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Investigator's decision on behalf of the Ombudsman