Summary: Miss F complains the Council has failed to accurately assess her brother’s (Mr D) financial contributions for residential care. She also says the Council has not provided accurate and timely information relating to Mr D’s care invoices and reviews. We have identified numerous and serious failings by the Council which demonstrate poor administrative practice. In particular, the Council delayed by three years in completing a financial assessment to establish Mr D’s care contributions. It also failed to provide accurate and timely invoices to Miss F, send her care reviews and address matters during its own complaints procedure. These failings caused Miss F and Mr D a significant and personal injustice and the Council has agreed to remedy this.

The complaint

1. The complainant, who I refer to as Miss F, is making a complaint on behalf of her brother, who I refer to as Mr D. In summary, Mr D has complex health and care needs and lives in a rehabilitation care home on a full-time basis. The Council meet the cost of Mr D’s eligible needs, though he also makes a contribution towards the cost. The level of contribution Mr D needs to make is calculated by the Council undertaking a financial assessment.
2. In summary, Miss F alleges the following:

1. The Council failed to properly undertake a financial assessment to determine the accurate amount of contributions Mr D needs to make towards his care. Miss F says this error resulted in incorrect arrears being added to his account. She also adds that she did not receive correspondence relating to a financial assessment from 2016 to 2020.

2. The Council has not considered Mr D’s Disability Related Expenditure (DRE) to properly inform his level of contributions for his care. Further, Miss F says Mr D’s Personal Expense Allowance (PEA) remains at the standard rate despite his expenses exceeding the rate.

3. The Council has failed to provide timely and accurate invoices to Miss F in relation to Mr D’s contributions towards his care.

4. The Council has failed to correspond with Miss F in a timely and reliable manner, particularly with regards to Mr D’s care and support reviews. It also failed to attend review meetings with respect to Mr D’s care and support.

5. The Council’s complaints responses to Miss F have not provided needed information and have been consistently poor and unreliable.

6. The Council has conducted a flawed assessment of Mr D’s care needs. Specifically, it is alleged the Council has reached a conclusion, without merit, that Mr D’s needs can be met within the community. In Miss F’s view, this decision is contrary to the informed view of professionals and could have the impact of prejudicing Mr D’s wellbeing.

3. Miss F says the alleged failings have caused her extreme stress and resulted in excessive time and trouble pursuing the Council. As a desired outcome, Miss F wants the Council to provide invoices in an accurate and timely manner. Further, she wants the Council to undertake a full review of Mr D’s case and to provide all documents so these can be checked for accuracy.

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What I have investigated

4. I have investigated all of the above outcomes, with the exception of outcome (f). This is because this matter has not been subject to the Council’s complaints policy and procedure. The law says I must be satisfied the Council has been afforded a reasonable opportunity to investigate the issues under complaint before the Ombudsman conducts an investigation (see section 26(5) Local Government Act 1974). I will not therefore investigate this matter until such a time it has exhausted the Council’s complaints policy and procedure.

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The Ombudsman’s role and powers

5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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).
7. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended).
8. We cannot question a council’s decision 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).

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How I considered this complaint

9. I have reviewed Miss F’s complaint to the Ombudsman and Council. I have also had regard to the responses of the Council, supporting documents and applicable legislation and statutory guidance. I invited both Miss F and the Council to comment on a draft of my decision. Each of their comments were fully considered before a final decision was made.

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What I found

Background and legislative framework

The Care Act 2014

10. Some people need extra care or support, practical or emotional, to lead an active life. The need for social care may arise when a person becomes frailer with age as one example. A care and support plan is a detailed document setting out what services will be provided by the local authority. It also explains how it will meet the person’s needs, when they will be provided, and who will provide them. A care and support plan should be reviewed regularly by the local authority.
11. In circumstances where an adult may have needs for care and support, Section 9 of the Care Act 2014 (the 2014 Act) places a duty on local authorities to conduct a needs assessment. This is to determine whether the adult does have needs for care and support and if the adult does, what those needs are. Once a needs assessment has been completed, the Care and Support (Eligibility Criteria) Regulations 2014 is used to identify the level of needs which must be met by a local authority. Where a local authority has determined a person has eligible needs, it has a duty to meet these needs, subject to meeting the financial criteria.
12. Section 17 of the 2014 Act says a council must assess the person’s financial resources and any amount the person would be likely to pay towards the cost of meeting the needs for care and support once it has decided on eligibility under Section 13 of the 2014 Act. The care and support statutory guidance says an assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs. Local authorities should inform the individual of an indicative timescale over which their assessment will be conducted and keep the person informed throughout the assessment process
13. Local authorities do not have a statutory duty to meet a person’s needs where they are assessed as having eligible needs to be met by care in a care home, and have capital above the upper financial limit. However, they do have a discretion to do so under Section 19 of the 2014 Act.

Disability related expenditure

14. If a council takes a disability benefit into account when calculating how much a person should contribute towards the cost of their care, they must also assess DRE in the financial assessment. This is because the Care Act statutory guidance says councils must leave individuals with enough money to pay for necessary disability related expenditure to meet any needs not being met by the council. DRE are costs that arise from a disability or long-term health condition. Councils should not be inflexible in the costs it accepts, and should always consider individual circumstances. Some councils disregard set amounts for DRE, but if a person’s costs are higher than the set amount a full assessment of their costs should be made.

Personal expenses allowance

15. The PEA is the weekly amount that people receiving local authority-arranged care and support in a care home (residents) are assumed to need as a minimum for their personal expenses and local authorities must apply this.
16. The PEA is specified in regulations made under Section 14(7) of the 2014 Act and applies to all people whose care and support in a care home is arranged by a local authority under Section 18 or 19 of the Act. It is intended to allow residents to have money for personal use. Based on a financial assessment of their resources, individuals must be left with the full value of their PEA. It is then up to them to determine how they spend it. Local authorities, providers of accommodation, and residents are reminded that the PEA should not be spent on aspects of care and support that have been contracted for by the local authority and/or assessed as necessary to meet the person’s eligible care and support needs by the local authority or the NHS. Neither local authorities nor providers have the authority to require residents to spend their PEA in particular ways and, as such, should not do so. Pressure of any kind to the contrary is poor practice.

Chronology of events

17. In 2016, Mr D entered a rehabilitation care home on a full-time basis. He lacks mental capacity and Miss F is his next of kin (NOK) and registered deputy. Miss F has only ever received one care plan for Mr D, this being in 2016.
18. In 2018 and 2019, the Council conducted an annual review of Mr D’s care needs to inform any change in his circumstances. The Council did not send Miss F a copy of either the reviews or amended care plans on either occasion.
19. To assess Mr D’s contribution towards his care, the Council sought to undertake a financial assessment. However, over a three-year period, the Council sent documents and requests for further information (relating to the financial assessment) to Miss F’s old address. The Council was aware of Miss F’s correct address which was held on its internal systems. This meant Mr D’s financial assessment was not concluded until December 2019.
20. The Council did not send Miss F as Mr D’s NOK and registered deputy an invoice for Mr D’s care costs until December 2020. When it did, the Council billed Mr D for approximately £36,000 and issued a legal demand for immediate payment.
21. In September 2020, the Council undertook an annual review of Mr D’s care needs which concluded that his needs continued to be met at his residential home. This review was shared with Miss F.
22. In January 2021, Miss F made a formal complaint to the Council relating to its financial assessment, invoices, and communications with her more generally. Miss F also complained that Mr D’s DRE was not being considered by the Council and that his expenses exceeded his PEA. She asked for this to be reviewed.
23. In March 2021, the Council responded to Miss F and fully accepted fault with respect to delays in completing Mr D’s financial assessment, as well as sending accurate and timely invoices. The Council also identified significant delays in responding to and engaging with Miss F. However, it did not uphold her complaint with respect to Mr D’s DRE as this is not applicable to a care home setting.
24. In May 2021, Miss F’s complaint was escalated to stage two of the Council’s complaints policy and procedure. Specifically, Miss F was dissatisfied with the Council’s response relating to Mr D’s PEA and felt certain costs should be included by the Council in meeting his eligible care needs. She also told the Council she had not received the outcomes of its annual care reviews.
25. In early June 2021, the Council responded to Miss F and apologised for additional oversights, including not sending her Mr D’s care reviews and delays in its complaint handling. With respect to Mr D’s PEA, the Council maintained that it was satisfied it was leaving him enough money to cover his personal expenses. Considering its identified failings however, the Council agreed to waive approximately £36,000 of Mr D’s care costs.
26. In mid-June 2021, the Council sent Miss F an invoice which included costs it had agreed to waive following a formal complaint (see Paragraph 25). The Council has since recognised it had already agreed to waive these costs and so have undertaken to do so by amending its records.
27. In November 2021, the Council completed a further care review for Mr D. This includes a recommendation that Mr D’s care needs could be met in an alternative setting, such as a supported housing unit. This, as well as the accuracy of care reviews more generally, is subject to an internal complaint by Miss F in accordance with the Council’s complaints policy and procedure.
28. In November and December 2021 and January 2022, the Council said it sent Miss F invoices for Mr D’s care costs. However, it later discovered these had not been sent to Miss F. This was because it placed Mr D’s billing on hold due to the complaints process being engaged. The Council did not however tell Miss F this or reinstate regular billing following the conclusion of the complaints process.

My assessment

Time limitations

29. Importantly, I cannot by law investigate any complaint made more than one year of the complainant becoming aware of the problem, unless there are good reasons to exercise discretion in this respect. In this case, Miss F has complained about both historical and recent issues. In particular, Miss F says the Council failed to communicate with her relating to a financial assessment, care reviews and invoicing from 2016 to present day. However, the Council acknowledge fault in communicating with Miss F over an extended period. It has apologised to Miss F for a delay in completing the financial assessment. The Council also acknowledge failings with respect to billing Miss F in a timely manner.
30. I consider I am able to ascertain evidence and draw an accurate and reliable conclusion in this case notwithstanding the passage of time. I am therefore exercising my discretion to investigate the issues concerning matters which would ordinarily be considered late.

Financial assessment

31. A financial assessment should be carried out over an appropriate and reasonable timescale. When Mr D entered residential care in 2016, the evidence suggests the Council delayed in completing the financial assessment and in corresponding with Miss F to ensure timely progress. It was not concluded until December 2019, three years and eight months after Mr D’s initial needs assessment. In mitigation, the Council says it completed provisional financial assessments and sent other documents to Miss F over a three year period in order to ascertain accurate information. This would have informed a complete and accurate financial assessment. However, the Council sent these documents to Miss F’s old address and the evidence demonstrates it was fully aware of her correct address.
32. The time taken by the Council to complete a full financial assessment was entirely disproportionate and unsatisfactory. The evidence also suggests there was a lack of oversight by the Council in monitoring progress. The Council was at fault and this ultimately originates from a failure to send important and data sensitive information to the correct address. However, that the assessment process was allowed to continue on provisional assessments alone for three years demonstrates poor administrative practice. This resulted in a continued provisional financial assessment which was inaccurate because it did not take into account Mr D’s full financial circumstances.

Invoicing

33. The Council fully acknowledge it also failed to send invoices for Mr D’s care to Miss F over a lengthy period. Despite entering care in 2016, the Council did not issue an invoice until December 2020. This was serious fault by the Council and it reinforces there existed a lack of oversight and accountability within the assessment and billing processes. Further, when Miss F received invoices, they were wholly inaccurate due to the Council’s failure to complete a financial assessment. This resulted in the Council billing Mr D for approximately £36,000.
34. The faults identified meant the Council did not provide clear and transparent information to Miss F. In terms of the impact, Miss F explains the Council’s failings have resulted in deep distress and anxiety, as well as excessive time and trouble pursuing the Council for information. Moreover, Miss F recalls receiving a legal letter from the Council for large arrears which was borne entirely by service failure. That said, during the Council’s internal complaints process, it agreed to waive the arrears of approximately £36,000 in full for the period before December 2020. It also undertook to provide accurate invoices to Miss F on a monthly basis.
35. In Miss F’s complaint to the Ombudsman, she explains the Council has still failed to invoice her for the cost of Mr D’s care. The Council has responded to this allegation by providing me invoices for November and December 2021 and January 2022. However, Miss F rejects that she has received these and provided me with a detailed record of the invoices she had received. This shows the latest invoice Miss F received was in June 2021. Moreover, the invoice was inaccurate as the billing period for the invoice ran from April 2020 to April 2021, notwithstanding the Council agreed to waive all costs up to December 2020.
36. Following further enquiries to the Council, it accepted the invoices for November and December 2021 and January 2022 were not sent to Miss F. It also acknowledges its recent invoices to Miss F were incorrect as the one issued in June 2021 contained charges of £1,500 which it had previously agreed to waive. The Council has since waived this amount, bringing the total amount of waived care charges to approximately £37,500. I am therefore persuaded the Council is continuing its failure to issue Miss F invoices on a monthly basis. I am also not satisfied the Council’s irregular billing is accurate. I therefore find fault.

Communication failings

37. I have addressed above that there has been a wholesale failure by the Council to communicate with Miss F with respect to the financial assessment and billing processes. The Council has also acknowledged a failure to respond to Miss F in a timely manner with respect to a change in Mr D’s social workers.
38. In addition, Miss F alleges the Council failed to share documents relating to Mr D’s care and support review in a timely manner. In response, the Council says it has no record of Miss F being sent confirmation of Mr D’s statutory care reviews in either 2018 or 2019. It has however provided evidence of Miss F being provided Mr D’s 2020 care review, albeit later than it should have been. Further, the Council recently undertook a further statutory review of Mr D’s care needs in November 2021 which I understand Miss F received and is now subject to a further complaint with the Council. I do find fault by the Council for not sharing Mr D’s earlier care reviews to Miss F. This was extremely poor practice considering Mr D lacks capacity.
39. Separately, Miss F also says officers of the Council failed to attend review meetings to discuss Mr D’s care arrangements on three separate occasions, including in June 2018, December 2018 and June 2019. In response, the Council says it was invited to Care Pathway meetings at Mr D’s residential care home in June 2018 and December 2018, but that these were not statutory reviews and officers were unable to attend on these dates. Further, the Council asked the provider to relay any issues to the Council or provide any report they produced. The Council adds it has no record on its system of receiving in invitation in June 2019. That said, I have found the Council’s records in this case to be both inaccurate and unreliable and so, on balance, I believe Miss F that the Council was invited to a meeting in June 2019 and she expected officers to attend.
40. I have found no fault by the Council in not attending these non-statutory reviews and in any event, it requested any issues or reports be forwarded on. I do however consider there were communication failings between the Council and Miss F in terms of the Council’s role at these meetings and whether it would attend. While the Council acknowledge it was unable to attend the meetings, there is no evidence it confirmed this to Miss F who had a legitimate expectation that officers would be in attendance. I do therefore find fault by the Council.

Personal expense allowance

41. Miss F says the Council has failed to consider Mr D’s DRE which exceeds his allowance. The Council is correct in that DRE is not applicable to individuals living in a care home setting. People in a care home will contribute most of their income, excluding their earnings, towards the cost of their care and support. However, a local authority must leave the person with at least £24.90 a week of their own income so that the person has money to spend on personal items such as clothes and other items that are not part of their care. This is known as the personal expenses allowance. Local authorities have discretion to apply a higher income allowance in individual cases.
42. Nevertheless, Miss F maintains that Mr D is not being left with enough money to cover his expenses. This includes a dental hygienist every three months, monthly chiropodist, hairdressing, food and social outings. In response, the Council says it is leaving Mr D with enough of his own income as required by law. It also considered exercising its discretion to increase Mr D’s PEA. However, following a review, it noted Mr D is eligible for free dental care and that all other expenses could be covered by his current rate of PEA. I am satisfied the Council is compliant with the PEA requirements. Further, I cannot question the Council’s decision to not exceed the current rate (see Paragraph Eight). This is because this action is entirely discretionary and the evidence does demonstrate the Council gave the issue consideration and with procedural accuracy.
43. I have however considered whether Mr D has been fully assessed by the Council with respect to his social care needs. Specifically, Mr D suffers with nail infections which require monthly chiropodist treatment. Miss F’s view is that such treatment should be deemed as an eligible care need to be met by the Council.
44. The law makes an important distinction between ‘healthcare’ needs and ‘social care’ needs, as confirmed by the landmark Court of Appeal case of R. v. North and East Devon Health Authority, ex parte Coughlan (1999). The Court ruled that local authorities have an obligation to assess primary needs that relate to social care and are prohibited from providing (or paying for) healthcare needs. Further, it found “…where the primary need is a health need, then the responsibility is that of the NHS, even when the individual has been placed in a home by a local authority.” The Council considers Mr F’s need for a chiropodist to be strictly healthcare related, as opposed to one that is focused on providing assistance with activities of daily living. I have not identified any fault in the Council’s assessment and so I do not uphold this part of the complaint.

Complaints process

45. In summary, Miss F informs the Council’s complaints process has been consistently poor and unreliable. I have reviewed the Council’s formal complaint responses to Miss F. On the issues of Mr D’s financial assessment and care invoices, the Council fully accepted failings and upheld Miss F’s complaint. Moreover, the Council said it had identified gaps in its communications and significant delays in its response and engagement with Miss F. The Council did not however uphold Miss F’s complaint with respect to DRE (see above) and I agree with the Council’s assessment. For the whole however, I do consider the Council has responsibly accepted fault where this has been identified. I also believe the Council has sought to remedy the failings by waiving Mr D’s care costs. For these reasons, I do consider the Council’s complaints process has proved partially fit for purpose in addressing some of Miss F’s concerns. That said, there has been a clear failure by the Council to learn from past mistakes as Miss F was still provided inaccurate invoices.
46. In addition, I am concerned that Miss F’s requests for documents and key information during the complaints process were not actioned or addressed by the Council. In particular, Miss F made precise requests for Mr D’s care reviews and for clarification on numerous identified inaccuracies in this respect. These requests were not actioned by the Council and so I do find fault. With respect to alleged inaccuracies contained within Mr D's care reviews, I am satisfied this part of the complaint forms part of complaint outcome (f) (see above). As I understand, this part of the complaint is currently being investigated by the Council in accordance with its complaints policy and procedure (also see Paragraph Four).

Summary of fault

47. I have identified the following failings by the Council:
1. The Council delayed by three years in completing a financial assessment for Mr D and failed to send Miss F documents for the assessment over this period. The Council’s delay amounted to a breach of statutory guidance.
2. The Council has provided irregular and inaccurate invoices to Miss F over an extended period. The Council’s care invoices continue to be inaccurate, and it has failed to provide Miss F with monthly invoices, as it promised to do.
3. The Council was responsible for a wholesale failure in communicating with Miss F over Mr D’s care needs. The Council has, more generally, failed to demonstrate good administrative practice in its communications with Miss F, including during its complaint handling.
4. The Council’s complaints process was in some areas not fit for purpose as Miss F’s requests for information were not responded to and past mistakes were not learnt from or remedied.

Injustice to the complainant

48. I consider the Council’s failings have been serious, longstanding and indicative of wholesale service failure and poor administrative practice. The Council’s responsiveness to Mr D’s financial care arrangements have been poor which has led to it issuing an unjustified legal demand to Mr D and Miss F for inaccurate amounts. It has also failed to learn from past mistakes with respect to ensuring timely contact with Miss F. These serious issues have placed unfair pressures on Miss F who has ultimately had to spend excessive time correcting the Council and trying to ensure it provides a satisfactory level of service. I am satisfied both Mr D and Miss F have suffered serious distress by reason of the Council’s failings.
49. Importantly, when considering a remedy to Mr D, I must have due regard to the fact that the Council has waived approximately £37,500 from his care fees. While I do consider Mr D and Miss F have suffered a significant and personal injustice, I would not recommend a goodwill payment over £500 in the circumstances. On that basis, I believe the Council, at least from a monetary perspective, has remedied any injustice to Mr D already. That said, I believe the Council does need to provide a monetary remedy to Miss F. All other remedies will take the form of service improvements and review exercises.

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Agreed action

50. To remedy the fault and injustice identified in this statement, the Council has agreed to perform the following actions by 24 April 2022:
1. Provide Miss F a written apology which acknowledges the faults and injustice identified in this statement.
2. Pay Miss F £500 to acknowledge the distress she has suffered over an extended period and for her time and trouble.
51. In addition, the Council has agreed to perform the following by 14 May 2022:
1. At a senior level, the Council will undertake a detailed review of Mr D’s inaccurate care invoices since Mr D entered residential care. The review will focus on understanding why these failings occurred and should lead to the production of a new summary and/or invoice about any amount owed by or due to Mr D (to be promptly shared with Miss F). Further, the Council will review why it failed to act earlier with respect to providing Miss F accurate and timely invoices, as it had previously undertaken to do.
2. The Council will subsequently prepare a bundle of documents for Miss F which includes all Mr D’s historical and recent care plans, care reviews, case notes and care invoices held on its systems. In addition, the Council should include the outcome of the case review relating to Mr D’s care costs and invoices. The Council will send the bundle of documents by either post or email (subject to Miss F’s preference).
3. The Council will then hold an in-person meeting with Miss F (and any companion(s) she chooses) to review the subject of Mr D’s care contributions and the Council’s inaccurate invoices. The Council’s review of the invoices will be shared with Miss F transparently and will seek her views with respect to accuracy. The Council should also compile a list of all documents requested by Miss F and provide these to her within two weeks of the meeting. Further, the Council should set out a clear strategy at the meeting relating to its communications and correspondence improving with Miss F in the future.
52. The Council has also agreed to perform the following by 24 June 2022:
1. At a senior level, the Council will review its policies and practices with respect to sharing care reviews, conducting financial assessments in a reasonable time, and issuing invoices at regular intervals. The purpose of the review is to implement services improvements for the benefit of customers in the future. The Council will need to provide evidence of the review and measures adopted to improve its service to the Ombudsman.

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Final decision

53. The complaint is partially upheld. I have identified numerous and serious failings by the Council which demonstrate poor administrative practice. In particular, the Council delayed by three years in completing a financial assessment to establish Mr D’s care contributions. It also failed to provide accurate and timely invoices to Miss F, send her care reviews and address matters during its own complaints procedure. These failings caused Miss F and Mr D a significant and personal injustice and the Council has agreed to remedy this.

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Investigator's decision on behalf of the Ombudsman