Summary: Mr Y complained the Council overcharged him for care and failed to make him aware of the standard charge for care services when he moved into an extra care housing facility. The Council was not at fault. The records show the Council explained the charges associated with extra care housing, and has charged Mr Y for care based on his financial contribution.

The complaint

1. Mr Y complains:
1. the Council commissioned care provider overcharged him for care between May and June 2020 at the extra care housing facility where he lives which led to him cancelling the care. He says his care plan was for two 15 minute visits a day but the care provider’s records noted visits of up to 45 minutes which he had never received.
2. The Council has failed to carry out a face to face financial assessment with him despite saying it would do so; and
3. he is being charged a standard charge for care services at the extra care housing accommodation where he lives but he does not receive any services, was not made aware of the charges and did not agree to them when he moved to the property. He says he cannot afford to pay the charge and would not have moved in if he had known about it. This has led to him accruing a significant debt with the Council.

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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. 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)
4. 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

5. I have considered the information supplied by Mr Y and his representative and have discussed the complaint with Mr Y. I have considered the Council’s response to my enquiries and the relevant law and guidance.
6. I gave Mr Y and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

7. Extra care housing is purpose built housing with care primarily aimed at older people to promote independent living. The occupiers live in self-contained properties and have access to care and support 24 hours a day either on site or on call.

Charging for adult social care

8. The Care Act 2014 sets out the legal framework for charging. Councils can make charges for care and support services they provide or arrange. They must do so in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014. Charges may only cover the cost the council incurs.
9. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The assessment must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25% (also known as the minimum income guarantee). 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. Those with capital assets of over £23,250 have to pay the actual cost of the care they receive. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)
10. The Care and Support Statutory Guidance sets out some key principles councils should take into account when making decisions on charging. This includes that the approach to charging for care and support needs should:
• ensure that people are not charged more than it is reasonably practicable for them to pay
• be clear and transparent so people know what they will be charged and
• apply the charging rules equally so those with similar needs or services are treated the same and minimise anomalies between different care settings.

The Minimum Income Guarantee

11. The Social care – charging for care and support Local Authority Circular DHSC (2019)1 sets out the level of the minimum income guarantee. For those age 25 up to the qualifying age for pension credit the rate is £151.45 per week. This increases to £189.00 for those over the qualifying age for pension credit.

The Council’s Charging Policy

12. The Council’s Non-Residential Care Charging Policy sets out how the Council will financially assess individuals to determine the contribution they should pay towards the cost of their care. It calculates the financial contribution by calculating:
• Income and capital
• Less housing costs and disability related expenditure (DRE) such as extra costs of cleaning or domestic help, private chiropody, special clothing or footwear
• Less the minimum income guarantee.
13. The Council’s policy sets out that if a person disagrees with the amount or the figures used in the assessment, they should contact the financial Assessment Team in the first instance. It says bills will be sent every four to five weeks.

Mental capacity assessment

14. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
15. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:
• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.
16. The Council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.

What happened

17. Mr Y lived in sheltered accommodation. He is partially sighted and has health conditions which make him breathless. In October 2019 a Council officer carried out a needs assessment. They recorded Mr Y was partially sighted and reported being very lonely. They noted he was interested in a possible move to an extra care scheme. A care worker from the sheltered accommodation took part in the assessment and reported Mr Y was isolated and would benefit greatly from on-site facilities, social activities and the 24 hour care and staff presence that an extra care scheme provides.
18. Mr Y reported he sometimes did not take his medication and agreed he could do with support to ensure he had taken his tablets. He had a cleaner who helped with shopping but he struggled to read packets and instructions. He did not go out alone due to his eyesight and felt he would have more social contact in an extra care scheme. He reported his appetite was not good and felt he may eat better at an extra care scheme with an on-site restaurant.
19. In the assessment the officer noted they informed Mr Y of the different extra care schemes. Mr Y had been to view an extra care housing (ECH) scheme and really liked it. The officer noted ‘informed that at the extra care schemes the carers are based on site so they are there 24 hours per day. The fact that there is an additional charge in the extra care schemes to cover the on site carers who could provide help in emergencies and for unexpected situations, this amount does vary scheme to scheme. This charge [at the ECH] will be £79.52 but is subject to the financial assessment to determine how much he may have to pay. [Mr Y] is aware the charge for rent is £189.39 plus £30 for the meal. The rent could be reduced subject to housing benefits if he should qualify but the £30 for meals is not’.
20. In November 2019 the Council completed a pre-service financial assessment ‘for any non-residential care services you are receiving or due to start receiving’. This calculated Mr Y’s weekly contribution as £102.80 per week.
21. Mr Y moved to the ECH in January 2020. His tenancy set out the cost of rent and meals but made no reference to care costs. Mr Y’s support plan set out a need for three 15 minute visits a day, in the morning, at lunchtime and teatime for support with breakfast and teatime snacks and to assist Mr Y to the restaurant at lunchtime and to prompt with medication. The support plan showed the cost of the care package as £92.77 plus the supported living service charge of £79.51 giving Mr Y a personal budget of £172.28. The Council calculated Mr Y’s contribution to the cost of this was detailed, as above, £102.80 per week.
22. The Council reviewed Mr Y’s care package after six weeks. It noted Mr Y had found three visits a day too much so this was reduced to two 15 minute visits to prompt with medication. It noted Mr Y enjoyed the meals in the restaurant. He had a walk in shower and felt safer using it knowing carers were on-site. It noted due to poor mobility and sight sensory issues Mr Y was unable to go out unaccompanied. It recommended an additional two hours of support once a week to support Mr Y with accessing the community.
23. In July 2020 the service charge at the ECH increased from £79.52 per week to £108.87.
24. A Council officer reviewed Mr Y’s needs again in July 2020. A care worker from the care agency and a friend of Mr Y’s from the ECH were present at the review. At the review Mr Y expressed concerns about the financial contribution towards his care package as he had not been paying since the care package started. Mr Y said he wished to cancel the care package as he was managing taking his medication independently. The care worker considered the risk to Mr Y was low if he cancelled the care but he would need support if in future his physical health deteriorated.
25. Mr Y’s friend, also living at the ECH, told the officer residents were not made aware of the weekly charge. He said if residents were told about the charge prior to the move they would not have moved in. The Council officer explained the Council’s fairer charging policy to Mr Y. Mr Y advised he was able to prepare meals independently and would ask a friend to collect him when he went shopping. He was not using the support to access the community as he preferred going out independently. He received support from his friend with financial management and shopping when required. The officer noted due to the accruing debt of unpaid care charges Mr Y was refusing support from carers and wished for his care package to be ended. The officer agreed to end Mr Y’s support plan.
26. The Council officer also completed a mental capacity assessment and was satisfied Mr Y had capacity to make decisions around his care needs and understood the consequences should he choose not to pay his financial contribution. Although Mr Y no longer received an individual care package he continued to be charged his financial contribution for the cost of the standard charge for care services at the ECH.
27. A Council officer reviewed Mr Y’s needs in May 2021. They noted Mr Y’s needs had not changed but Mr Y was extremely stressed by the debt he had accrued and said he would not have moved in had he realised the cost implications.
28. The Council reviewed Mr Y’s financial contribution in July 2021. It assessed his contribution as £111.65 per week. The letter set out the cost of the service was £108.87 and Mr Y’s requirement to pay the lower of the two rates.
29. Mr Y complained to us and we passed the complaint to the Council to respond to. The Council’s response set out its records showed Mr Y was informed of the charges a move to ECH would incur. In addition he was informed he would undergo a financial assessment to determine what his contribution to extra care charges would be. An officer would contact him to look at how he could address the debt. Mr Y remained unhappy and complained to us.

Findings

Charges for his care package

30. The Ombudsman is not an appeal body. We cannot question a council’s decisions if there is no fault in the way the decisions are reached.
31. The Council calculated Mr Y’s contribution to his care charges in line with the relevant statutory guidance, regulations and the Council’s own policy. It left Mr Y with an amount in line with the minimum income guarantee set by the Government. There was no fault in the way it carried out the financial assessment.
32. Mr Y’s support plans detailed the cost of the support to be provided to Mr Y. Mr Y was not charged more than either the cost of his package or the calculated cost of his contribution, whichever was the lowest. I have seen no evidence Mr Y was charged for additional visits or support over and above his assessed financial contribution. The Council was not at fault.

Financial assessment

33. Mr Y says the Council refused to carry out a face to face financial assessment. The Council carried out a financial reassessment in July 2021. It wrote to Mr Y following this and set out how it calculated his financial contribution. There is no evidence of fault in the way it calculated Mr Y’s financial contribution.

ECH service charge

34. Extra care housing works on the premise that residents pay a standard charge for care and support whether or not they use it. This is to cover the cost of a round-the-clock staff presence. It is not fault for this charge to be made for care available to residents at an ECH scheme.
35. The Council’s approach to charging for this support is to carry out a financial assessment in line with the Care and Support Statutory Guidance. The financial assessment is used to calculate the individual’s contribution to the cost of their care; that is to calculate their contribution to the cost of the service charge for access to round the clock support in extra care housing plus any care package they receive to meet their individual assessed needs.
36. When the Council first discussed the option of ECH with Mr Y its record shows the officer informed Mr Y of the additional charge for round the clock support in ECH. They also explained he would be financially assessed to calculate his contribution. The Council also carried out a pre-service financial assessment and wrote to Mr Y in November 2019 setting out Mr Y’s financial contribution.
37. It would have been good practice if the Council had provided additional written information to Mr Y about the standard charge for care services at the time he moved in. However, the information shows Mr Y was made aware there was a standard care services charge at the ECH before he moved in and he was provided with information about his calculated financial contribution. The Council was not at fault.

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Final decision

38. I have completed my investigation. On the evidence considered the Council was not at fault.

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Investigator's decision on behalf of the Ombudsman