Summary: Ms T complains on behalf of Miss X about how the Council wrongly completed Miss X’s financial reassessment and miscalculated her domiciliary care fees. There was fault by the Council in how it completed a financial reassessment for Miss X. The Council was also at fault when it continued to pay into Miss X’s direct payment account despite Miss X telling it she was not using the care services. This has caused Miss X significant distress and inconvenience. The Council will take action to remedy the injustice caused.

The complaint

1. Ms T complains on behalf of Miss X. Ms T is her daughter and she has a lasting power of attorney for Miss X’s health and finance.
2. Ms T complains about the Council’s charges for Miss X’s domiciliary care package. In particular, Ms T alleges the Council:

• did not use the correct process when it carried out a financial reassessment for Miss X
• miscalculated Miss X’s domiciliary care fees when it issued her with an invoice of £879.77 for the period between April 2020 to October 2020
• charged Miss X’s direct payment account for periods she did not receive care from the Council.

3. Ms T says the matter has caused Miss X significant distress and inconvenience.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I discussed the complaint with Ms T and considered the information she provided. I considered the information the Council provided in response to my enquiries.
7. I sent Ms T and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

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What I found

Law and Guidance

8. The Care Act 2014, the Care and Support Statutory Guidance 2014 and the Care Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support, and its powers to charge.
9. Charges may only cover the cost the council incurs. (Care Act 2014, s.14 (1,4))
10. Councils should develop and maintain a policy setting out how they will charge people for the cost in settings other than care homes. Councils must carry out a financial assessment to make a decision about the charges. This will assess the person’s capital and income.
11. The upper capital limit is currently set at £23,250 and the lower at £14,250. A person with assets above the upper capital limit are required to pay for their own care. Even if the capital is below the threshold of £23,250, residents may have to pay a contribution from their income towards their care.
12. Once a council completes the financial assessment, it must give a written record of the assessment to the person. It should explain how the assessment has been carried out, what the charge will be, how often it will be made and if there is any fluctuation in charges, the reason. Councils should ensure that this is provided in a manner that the person can easily understand, in line with its duties on providing information and advice.
13. The Mental Capacity Act introduced lasting power of attorneys (LPA). An LPA is a legal document, which allows people (donors) to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so themselves. The ‘attorney’ is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.

Light-touch financial assessment

14. In some circumstances, a local authority may choose to treat a person as if a financial assessment had been carried out. This is known as a ‘light-touch’ financial assessment.
15. The Guidance sets out some examples where a light-touch financial assessment may be considered. For example, where a person has capital which is clearly over the threshold.
16. The Guidance says where a council proposes to undertake a light-touch financial assessment, ‘it should take steps to assure itself that the person concerned is willing to pay all charges due. It must also remember that it is responsible for ensuring that people are not charged more than it is reasonable for them to pay. Where a person does not agree to the charges that they have been assessed as being able to afford to pay under this route, a full financial assessment may be needed.’

Direct Payments

17. The Care Act 2014 states a person with eligible care needs can have a council arrange their care or, if they wish, they can arrange their own care using a direct payment.
18. Direct payments are a means of paying some, or all, of the personal budget to a person to arrange and pay for their own care. They are intended to give the person independence and control over the way their needs are met.
19. Unspent direct payments will usually be reclaimed by the council.

Council’s charging policy

20. ‘…. if a person owns a property that is not their main or only home, it will be treated as a capital asset and will be included in the assessment, unless they qualify for a statutory disregard as set out in the Care and Support Statutory Guidance. This means they will be assessed as being responsible for the full cost of their care.’
21. ‘Individuals and their representatives have a duty to inform the Council of any changes in circumstances that might affect the financial assessment and assessed contribution….. where the Council is made aware of such changes, it will carry out a reassessment and where applicable the increase or decrease in assessed contribution will be backdated to the effective date of the change.’
22. “The council will pay the money into a nominated direct payment account every four weeks and you will need to pay any contribution required into the same account. This account must only be used for the direct payment as the council will audit this account and how the money is spent to ensure funds are being used to meet your needs.”

What happened

23. This chronology includes key events in this case and does not cover everything that happened.
24. In September 2019, Miss X moved to the Council’s area. Miss X lives with Ms T in a private rented property.
25. The Council completed a financial assessment (FA) for Miss X regarding charges for her care services. This was to determine how much Miss X would contribute towards her care. The outcome of the FA was that Miss X would not make any contributions towards her care fees (a ‘nil payer’).
26. In October 2019, Miss X started receiving non-residential care services.
27. The Council became aware Miss X jointly owned a property with her son. The Council asked Ms T to provide evidence to show Miss X had sold the property. It asked Ms T to provide the additional information and evidence by the end of November 2019.
28. In December 2019, the Council completed a further light-touch assessment for Miss X. It did not receive the evidence it requested from Ms T to show Miss X did not own the property. The Council was unable to complete a full assessment of Miss X’s finances. It found Miss X to be responsible for the full cost of her care.
29. In late 2019 and early 2020, Ms T provided the Council with the additional information and evidence it requested. The Council completed another light-touch assessment for Miss X and found she remained responsible to pay her full care charges. The Council said it could not disregard the value of the property.
30. Ms T told the Council Miss X sold the property in 1999. She made enquiries with the Land Registry about Miss X’s sale of the property. Ms T also informed the Council that Miss X lived with her but Miss X’s name was not on the tenancy agreement.
31. In April 2020, the Council completed another FA which showed it removed Miss X’s rent element. But this did not affect its assessment that Miss X was responsible to make a contribution towards her care cost.
32. In September 2020, Ms T asked the Council to reduce Miss X’s care package visits to one visit per day due to a change in Ms T’s circumstances. She said she would care for Miss X on the other days of the week. Ms T also asked the Council to cancel Miss X’s care package from 8 October 2020 because she and Miss X would be moving to another council area.
33. In October 2020, the Land Registry confirmed to the Council that it held incorrect information about the property Miss X had jointly owned with her son, which was sold in 1999. The Council completed a reassessment for Miss X which showed she was a nil payer.
34. In October 2020, Miss X moved out of the Council’s area. The Council sent Miss X an invoice of £879.77 for her care. It explained it should not have disregarded rent because Miss X was not named in the tenancy agreement, so she was not responsible to pay rent. This meant Miss X went from a nil payer to paying a contribution towards her care cost.
35. Ms T disputed the amount the Council charged Miss X and she made a complaint to the Council. Ms T said the Council stopped disregarding the rent and council tax elements for Miss X from 3 November 2019 to 18 October 2020. She said the Council did not inform her and/or Miss T about any changes due to the rental costs. Ms T also complained the Council charged Miss X for care from 14 June 2020. She noticed a large amount of DP cost was calculated for periods Miss X did not receive any home care. Ms T said a member of the Council’s staff advised her that any dates care was not provided to Miss X would be recalculated and reimbursed at the end of the financial year.
36. Ms T expressed her frustrations about how the Council had dealt with Miss X’s FAs and about her care charges. She said the Council’s failings and Miss X’s outstanding care costs had caused Miss X a great amount of anxiety and distress. Ms T asked for a review of Miss X’s care charges.
37. In the Council’s response to Ms T’s complaint, it explained its initial FA included rent and council tax as part of Miss X’s expenses. This made Miss X a nil payer. The Council said its assessment was incorrect because Miss X was not named on the tenancy agreement and therefore was not liable to pay rent or council tax. It said if Miss X had unused money for her DP, she could return any excess funds and an adjustment would be made to her contribution.
38. Ms T remained dissatisfied with the Council’s response to her complaint about Miss X’s care charges. Ms T complained to the Ombudsman.
39. In response to my enquiries with the Council, it accepted Miss X’s financial assessment was complex. It explained Miss X appeared to have owned a second property based on the information it received from the Land Registry. The Council said the Land Registry information was incorrect. The Council said it reassessed Miss X as a nil payer but agreed its nil assessment was also wrong because it had disregarded her rent. The Council explained it carried out a further reassessment for Miss X. It found she was responsible to make contribution towards her care charges so it applied the care fees but failed to backdate her fees.
40. The Council also explained Miss X’s DP service was set up but she did not use it. It explained the charges for her contribution continued to be applied while Miss X’s service agreement was active. The Council said this was why the £879.77 invoice was raised to Miss X. It confirmed Miss X’s account would be adjusted by deducting the surplus DP funds of £302.42 from her final invoice. The Council said Miss X’s outstanding balance is £577.35.

Analysis

41. I find the Council was not at fault when it completed its initial light-touch assessment for Miss X and decided she needed to pay the full cost for her care. This was because the Council based its decision on the incorrect information it received from the Land Registry that Miss X jointly owned a property with her son.
42. Evidence shows when the Land Registry provided the Council with the correct information that the property was sold in 1999, it carried out a reassessment for Miss X. However, the Council wrongly disregarded the rent and council tax elements despite Ms T having informed it that Miss X’s name was not on the tenancy agreement. This was fault. This resulted in Miss X being incorrectly told she was a nil payer.
43. In October 2020, when Miss X moved out of the Council’s area, the Council found out it had made an error in its reassessment of Miss X as a nil payer when it wrongly disregarded her rent. The Council further explained this was because Ms T originally stated on the FA form that Miss X paid rent and council tax. And it only discovered Miss X had not been liable for either the rent or council tax when the Land Registry error was discovered. As a result, Miss X was required to pay a contribution towards her care cost. The Council confirmed that to avoid Miss X suddenly receiving a large backdated charge, it advised her she would be classed as a nil payer for periods prior to 6 April 2020.
44. While I note the Council’s explanation, the fact Miss X had a period of being a nil payer which she was not entitled to, does not mean there was no fault by the Council. This is because evidence shows a month after Ms T submitted the initial FA, she notified the Council Miss X was not on the tenancy agreement. I consider this should have alerted the Council to the fact Miss X would not have been liable for council tax at the least and it should have clarified what she was liable for at the time. Therefore, this was fault but there was no significant injustice caused to Miss X. Miss X would have always had to pay a contribution towards her care cost for the whole period.
45. The Council confirms it continued to pay into Miss X’s DP account after she left the Council’s area and stopped receiving its care services. This was fault. It led to the Council issuing Miss X with an increased final care charge of £879.77. The Council has agreed to adjust Miss X’s DP account by deducting the £302.42 surplus funds from her final invoice.
46. I find the Council was also at fault for failing to explain to Ms T and Miss X the error it made for charging Miss X an increased final care cost. This caused Miss X significant distress.

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Agreed action

47. To remedy the injustice caused by the faults identified I recommend the Council within one month of the final decision:

• apologise in writing to Miss X and Ms T for the distress caused by the failure to properly complete Miss X’s financial reassessment as a nil payer.
• review whether the Council correctly charged Miss X for her contributions towards her care during the period she was not using the Direct Payment.
• issue Ms T the breakdown of Miss X’s care charges with the updated final invoice to show the outstanding charges. This is to ensure Miss X was correctly charged during the period she was not using her Direct Payment account.
• set out and explain to Ms T why and how the Council calculated Miss X’s final care charges.
• set up a repayment plan for Miss X to enable her pay the outstanding charges for her care.
• pay Miss X £150 financial remedy for the distress and inconvenience caused by the error in completing her financial reassessment and charging her unused Direct Payment funds.
• by training or other means remind staff of the importance of properly carrying out financial assessments and/or reassessments for care service users.

48. Within two months of the final decision:

• review the communication system between the Council and its Direct Payment team. Ensure there are clear mechanisms in place to avoid applying charges to care users’ Direct Payment funds for services it has not provided to them.

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Final decision

49. I find evidence of fault by the Council causing injustice to Miss X. The Council has agreed to take action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman