The Ombudsman's final decision:
Summary: Ms X complained on behalf of her son, Mr Y, about care and support charges from the Council. She said the Council sent two years’ worth of invoices to Mr Y, who did not know he had to contribute to the cost of his care as no one from the Council spoke to him about it. The Ombudsman found fault causing injustice because the Council failed to maintain a proper oversight of Mr Y’s care and support and failed to carry out adequate financial reviews.
- Ms X complained on behalf of her son, Mr Y, about care and support charges from the Council. She said the Council sent two years’ worth of invoices to Mr Y, who did not know he had to contribute to the cost of his care as no one from the Council spoke to him about it.
- Ms X said the situation caused her and Mr Y distress. She asked the Council to waive the charges.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- As part of the investigation, I have considered the following:
- The complaint and the documents provided by the complainant’s representative.
- Documents provided by the Council.
- The Care Act 2014.
- The Care and Support Statutory Guidance 2014.
- The Care and Support (Charging and Assessment of Resources) Regulations 2014.
What I found
Legislation and guidance
- The Care Act 2014 gives councils a legal responsibility to provide a care and support plan. The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
- Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.
- Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs. (Care and Support Statutory Guidance 2014)
- A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in settings other than care homes. A council has discretion to charge for non-residential care following a person’s needs assessment. Where it decides to charge a council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
- Where a council has decided to charge, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. Councils have no power to assess couples according to their joint resources. Each person much be treated individually. A council must not charge more than the costs it incurs to meet a person’s assessed eligible needs.
- People receiving care and support other than in a care home need to retain a certain level of income to cover their living costs. Councils’ financial assessments can take a person’s income and capital into consideration, but not the value of their home. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by national government and reviewed each year. A council can allow people to keep more than the MIG. (Care Act 2014 )
- A council’s approach to charging should be clear and transparent, so people know what they will be charged. (Care and Support Statutory Guidance 2014, section 8.2)
- Councils should also ensure there is enough information and advice available in a suitable format for the person’s needs, to ensure they understand any contributions they are asked to make. (Care and Support Statutory Guidance 2014, section 8.3)
- Councils must regularly reassess a person’s ability to meet the cost of any charges to take account of any changes to their resources. This is likely to be on an annual basis, but may vary according to individual circumstances. (Care and Support Statutory Guidance 2014, section 8.17)
- At the time of the assessment of care and support needs, councils must establish whether the person has the capacity to take part in the assessment. (Care and Support Statutory Guidance 2014, section 8.18)
- I have detailed below some of the key events leading to Ms X’s complaint. This is not intended to be a detailed account of what took place.
- Mr Y has a diagnosis of autism spectrum disorder, depression, anxiety, and short-term memory.
- The Council assessed Mr Y’s needs in June 2015. The assessor noted Mr Y’s diagnosis and that he wanted help to be independent and get his own home. The assessment said Mr Y needs help with planning and decision-making/management. Ms X supports him with paperwork and Mr Y consults her about future decisions.
- The assessment confirmed Mr Y had eligible needs and estimated his personal budget would be £66 a week.
- At Mr Y’s next needs assessment in March 2016 the assessor noted his depression and anxiety impacted his ability to complete tasks. They said Mr Y was unable to maintain a home or manage paperwork and finances. He does not recognise the need to pay bills and lacks understanding around this. He chooses not to share important correspondence with those supporting him and will throw it away. He needs support to help him understand.
- The Council wrote to Mr Y in April 2016 to tell him there were no charges for him to pay for his care, because his income and savings were below the limit.
- Mr Y’s needs assessment from February 2017 confirms he still did not recognise or understand the need to pay bills. He also lacked understanding around paperwork and planning. He needed support for this.
- The Council wrote to Mr Y about his care charges again in March 2017 and March 2018. On both occasions the Council told Mr Y he had nothing to pay.
- The Council reviewed Mr Y’s needs in April 2017. There were no changes, but the Council increased his estimated personal budget to £92.48 a week. The Council reviewed Mr Y’s care plan again in July 2018. The review states it gave Mr Y information about personal budgets.
- The Council reviewed Mr Y’s needs again in July 2018 when he was living in supported accommodation with support from a third-party care provider called Newbarn (the care provider). The review found Mr Y was receiving benefits in the form of an employment support allowance (ESA), although it noted Mr Y was not aware he was entitled to it. The Council was not aware of the ESA payment, so it referred Mr Y for a financial re-assessment.
- The Council wrote to Mr Y on 1 November 2018, after it updated his financial assessment to take account of his ESA payments. It said Mr Y was liable to pay care charges dating back to October 2016.
- The Council wrote to Mr Y on 13 November confirming the outstanding balance due was £3,634.29.
- Mr Y emailed the Council querying its letter asking him for payment. The Council said it would find out and discuss this with him.
- The Council arranged a review for Mr Y in February 2019. Mr Y’s case worker (Officer one) failed to tell the Council of a change in his financial circumstances, resulting in him receiving an invoice for arrears.
- Officer one also found Mr Y’s support was not recorded, because of a system error, resulting in an overpayment to the care provider between November 2016 and February 2019. They also noted the Council had overcharged Mr Y for his contribution.
- Officer one said they would update the Council’s system, speak to the care provider about the overpayment, and ask Mr Y’s support worker at the care provider to help him set up a direct debit for his care payments. Officer one also referred Mr Y for a new financial assessment.
- The Council wrote to Mr Y in May 2019. It told him his new weekly charge for his care and said he must let the Council know about any future changes to his financial circumstances.
- Officer one visited Mr Y for an assessment on 5 June 2019. Mr Y was joined by his girlfriend and his girlfriend’s mother. They felt the care provider had not supported Mr Y, as he was not managing his finances, resulting in debt. Mr Y received several letters and did not know if they were resolved. He passed them to his support worker. Officer one told Mr Y the Council had overcharged him, because it charged a higher amount than his personal budget. They told Mr Y to ensure he paid his contribution going forwards. Mr Y said he struggled with his finances and was regularly left without enough money. Officer one said they would look into Mr Y’s arrears and discuss his concerns with the care provider so there is a clear support plan moving forward.
- Another officer (Officer two) reviewed Mr Y’s case in October 2019 after the previous case worker left. Officer two noted Mr Y’s outstanding debt was £5,692.74, but this could be incorrect because of the service issues. They noted someone needed to work with the corporate team to resolve this.
- The Council wrote to Mr Y on 30 March 2020 to confirm the new rate for his care charge from April.
- In May 2020, a new case officer (Officer three) made a request for a review of the management of Mr Y’s finances and his dispute about the care charges.
- In June, Officer three noted Mr Y’s debt had increased to £7,064.16 as he had still not been paying his contributions.
- The Council assessed Mr Y’s capacity in June 2020. The assessor considered Mr Y understood the information about debt arrears and understood he needed a payment plan to repay the debt.
- Ms X spoke with the Council on 30 June. She said Mr Y received no bills for two years and then the Council sent a letter with tow years’ worth of invoices enclosed. She said that contributed to Mr Y having arrears. She also said Mr Y gave the invoices to his support worker at the care provider and thought they were being sorted. Ms X wanted to complain. The Council told her to do so in writing.
- Ms X emailed the Council on 6 April 2021, asking it to waive the debt. She said she complained on 8 July 2020 but received no written reply, so assumed the Council was dealing with it. However, Mr Y received final debt notices from the Council on 25 March. Ms X said some of the enclosed invoices had initially been sent to the wrong address. She said Mr Y was not aware he had to contribute to the cost of his care, and he would not have accepted the support if he had known he had to pay towards it. She said the Council did not give him a choice. Ms X complained Mr Y accrued debt through no fault of his own, and it was the Council’s responsibility to inform him. Ms X said Mr Y is vulnerable and the Council breached its duty of care to him.
- On 18 May, the Council apologised for taking so long to reconcile Mr Y’s arrears.
- The Council sent the result of the reconciliation, and of Ms X’s complaint, on 25 May. It said it charged Mr Y £4,367.25 up to February 2019, but the actual cost of his care was £6,786.77 – so it did not need to make any adjustments. It asked Mr Y to complete a financial statement. It confirmed the outstanding balance due was £7,558.17 and offered to support Mr Y make a financial hardship application.
- Ms X brought Mr Y’s complaint to the Ombudsman on 27 July 2021.
Response to enquiries
- The Council told me Mr Y was not initially required to contribute to the cost of his care. However, in a review in 2018 the Council found Mr Y had failed to tell the Council about a change in his benefits. The change meant Mr Y would have been liable to pay care charges from October 2016, so the Council backdated his financial assessment.
- The Council said it wrote to Mr Y in August 2015 explaining the position about contributing to the cost of his care. It also said his financial assessment was explained to him in July 2018 with Ms X present.
- The Council sent out invoices to Mr Y as well as financial statements to support with repayment of debt. Unfortunately, after December 2018 the Council sent invoices to Mr Y’s old address. The Council apologised for this error. It said it sent invoices to the correct address from February 2019 onwards. The Council also said it sent financial statement letters to the correct address.
- The Council said Mr Y’s assessments acknowledge he does not understand finances, paperwork, or planning. He was initially supported by Ms X and then by the care provider.
- When the Council assessed Mr Y’s needs in 2015 and 2016 it found he was unable to manage paperwork or his finances. The assessor said Mr Y was supported with paperwork by Ms X. However, the assessor noted Mr Y ‘does not recognise the need to pay bills and lacks understanding around this. He chooses not to share important correspondence with those supporting him and will throw it away. He needs support to help him understand’.
- While the assessor may have been satisfied Ms X would help Mr Y with paperwork, I have not seen evidence the Council gave enough consideration to the likelihood Mr Y would not share important paperwork and would throw it away, such as how this would be overcome.
- The Council initially told Mr Y he did not have to pay anything towards the cost of his care. It continued to tell him that until 2018, when it found he was receiving more income in benefits. The increased income meant Mr Y was liable to contribute towards the cost of his care and resulted in the Council issuing a backdated invoice of £3,634.29.
- Mr Y does have a responsibility to tell the Council about changes to his financial circumstances. However, the Council also has a duty to carry out regular financial reviews. Given the Council recognised Mr Y’s difficulties managing his finances and paperwork, it meant regular reviews were even more important. The Council sent Mr Y letters between 2016 and 2018 confirming he had nothing to pay. However, on the evidence seen, the Council did not properly review or re-assess Mr Y’s financial circumstances. That was fault. If the Council had done so, it would have found out about Mr Y’s extra income and the situation could have been avoided.
- When the Council carried out a review of Mr Y’s needs in February 2019, it found an error which meant it had been overpaying Mr Y’s care provider while he was in supported living accommodation, and it had also overcharged Mr Y. Mr Y’s case worker said the Council would update its system, review Mr Y’s charges, and get his support worker to set up a direct debit for his future care payments. Unfortunately, that did not happen. No direct debit was set up and the Council did not review Mr Y’s charges until May 2020, after another case worker took on Mr Y’s case.
- When the Council assessed Mr Y in June 2019, Mr X expressed concerns about his lack of support. The Council said it would address this with the care provider so there is a clear support plan going forwards. Unfortunately, the evidence seen shows Mr Y’s support did not improve.
- The Council carried out another review in June 2020. By then Mr Y’s outstanding care charges were more than £7,000. Mr Y told his social worker he gave the invoices to his support worker. He also raised concerns that he was not getting the support he needed with his finances and paperwork, meaning he often had no money. Mr Y subsequently ended his support from the care provider and moved back to the family home.
- The Council has been aware of Mr Y’s inability to manage his finances and paperwork since 2015, yet it has not done enough to put adequate support in place. This has left Mr Y with a large debt which is primarily of the Council’s making.
- The Council knew Mr Y needed support. It identified this in his assessments and allocated a support worker. But the Ombudsman must look at the outcome of the support. The outcome here is a substantial debt and associated distress because Mr Y did not receive adequate support in real time.
- The support was designed not only to support Mr Y to manage his finances and paperwork, but also to help him live independently. Regardless of the result of the recent capacity assessment, Mr Y is a vulnerable person and the support the Council put in place failed.
- I found the Council failed to maintain a proper oversight of Mr Y’s package of care and support. It also failed to carry out adequate financial reviews.
- The Council’s failings not only led to Mr Y incurring a significant debt, but also caused him distress. That is Mr Y’s injustice.
- The Council should therefore waive the fees incurred for Mr Y’s care and support.
- Within four weeks of my final decision, the Council agreed to:
- Apologise to Mr Y for failing to maintain a proper oversight of his package of care and support and for failing to carry out adequate financial reviews.
- Waive the outstanding charges of £7,558.17 for Mr Y’s care and support.
- I have completed my investigation. The Ombudsman found fault causing injustice because the Council failed to maintain a proper oversight of Mr Y’s care and support and failed to carry out adequate financial reviews.
Investigator's decision on behalf of the Ombudsman