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Wirral Metropolitan Borough Council (21 006 990)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 03 Apr 2022

The Ombudsman's final decision:

Summary: Mr X complains the Council is overcharging Mrs Y for the care she receives from its care provider, Icare Solutions (Wirral) Ltd. Mrs Y’s commissioned calls do not appear to have reflected her actual needs. This has resulted in significant overcharging, made worse by other failings within the charging system. The Council needs to correct these problems, apologise, recalculate Mrs Y’s charges and pay financial redress.

The complaint

  1. The complainant, whom I shall refer to as Mr X, complains the Council is overcharging Mrs Y for the care she receives from its care provider, Icare Solutions (Wirral) Ltd (the Care Provider).

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The Ombudsman’s role and powers

  1. 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)
  2. 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, sections 30(1B) and 34H(i), as amended)
  3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)

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How I considered this complaint

  1. I have:
    • considered the complaint and the documents provided by Mr X;
    • discussed the complaint with Mr X;
    • considered the comments and documents the Council has provided;
    • considered the Ombudsman’s guidance on remedies; and
    • invited comments on a draft of this statement from Mr X and the Council, for me to consider before making my final decision.

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What I found

What happened

  1. Mr X’s mother-in-law, Mrs Y receives support from two care workers four times a day. She started receiving support in September 2019. From May 2020 the length of the commissioned calls increased:
    • Morning – from 45 to 90 mins
    • Lunch – from 30 to 60 mins
    • Teatime – from 30 to 60 mins
    • Bedtime – from 45 to 60 mins
  2. The Council’s policy is to round up charges in 15-minute blocks. So, a call lasting 22 minutes is rounded up to a 30-minute charge and a call lasting 32 minutes is rounded up to a 45-minute charge.
  3. Mrs Y has capital over £23,250, so has to pay the full cost of her care. However, her family is concerned about what will happen to her care when her capital falls below £23,250.
  4. Mr X started raising concerns about overcharging in August 2020. He made a formal complaint in March 2021.
  5. When the Council replied to Mr X’s complaint in July 2021, it noted there were different sources of information on calls:
    • commissioned calls (as reflected in paragraph 7 above);
    • the Care Provider’s claimed call times (used to create invoices);
    • the Care Provider’s electronic call monitoring (actual call times based on the care workers logging in and out of each call by telephone); and
    • Mr X’s analysis of call lengths (set out in a spreadsheet).
  6. The Council said it had checked the information available for 22 June to 16 August 2020. This showed the Care Provider had provided inaccurate information on Mrs Y's account. This was because there were discrepancies (roughly 155 hours and 27 minutes) between its claimed call times and its electronic call monitoring, which should have been the same. It had therefore asked the Care Provider to provide accurate claimed call times based on the electronic call monitoring. The discrepancies meant Mrs Y had been overcharged.
  7. The Council said it checked some of the original claimed call times against the revised claimed call times. This showed:
    • from 30 September 2019 to 1 March 2020 the Care Provider had provided actual call times based on electronic call monitoring;
    • from 2 March to 31 May 2020 the Care Provider had provided commissioned call times, rather than accurate call times;
    • from 1 to 21 June 2020, the Care Provider had provided actual call times;
    • from 22 June 2020 to 3 January 2021, the Care Provider had provided commissioned call times, rather than accurate call times; and
    • from 4 January 2021, the Care Provider had provided actual call times
  8. However, after the Care Provider provided actual call times, the Council found a high level of calls (66%) where care workers forgot to log in or out, or reported problems with the phone, which resulted in it requesting payment based on commissioned call times. The Council noted that in March 2020, within the context of COVID-19, it had decided to pay care providers for 100% of commissioned care time. It said it still expected care providers to submit their actual times based on electronic call monitoring, but Mrs Y’s Care Provider had misunderstood the arrangement.
  9. The Council recalculated Mrs Y’s debt based on the actual call times provided retrospectively by the Care Provider. This reduced her debt from by £4,023.73 to £31,317.69. The Council said it would pay Mr X £150 for the time and trouble he had been put to and £100 to Mrs Y. The Council says it paid Mrs Y but Mr X decided not to accept a payment.
  10. Mr X asked the Council some questions, as he was not satisfied it had recalculated Mrs Y’s debt fairly. He considers the overcharging to be significantly higher than the Council.
  11. When the Council replied in August it said:
    • where no time had been recorded it charged Mrs Y for the commissioned call (even if average call length was significantly less); and
    • if one care worker did not log the visit, it based the charge on the commissioned call.

Is there evidence of fault by the Council which caused injustice?

  1. There is no dispute over the fact the Care Provider was claiming too much for the calls it delivered. That is fault for which the Council is accountable. It has accepted this by offering to reduce Mrs Y’s charges. The issue in dispute is the extent of the overcharging and whether the basis of the proposed reduction is fair.
  2. There are two key problems which reflect further fault by the Council:
    • Mrs Y’s commissioned calls appear to have been too long and did not reflect her actual needs; and
    • The high proportion of unlogged calls (66%) has enabled the Care Provider to claim for commissioned calls too often.
  3. The fact that recorded calls are on average significantly shorter than commissioned calls means Mrs Y has been overcharged for her care.
  4. I have not found fault with the Council for saying the charges for unlogged calls cannot normally be based on average call lengths. However, the proportion of unlogged calls (66%) is unacceptably high. There will always be some unlogged calls, but these should be the minority not the majority of the calls. The Council needs to work with the Care Provider to bring the proportion of unlogged calls down to a much lower level.
  5. The Council also needs to review the practice of defaulting to commissioned calls when one care worker has logged in, but the other has not. This has worked to Mrs Y’s disadvantage, though that is largely because her commissioned calls appear to be too long. However, it is not clear why the times logged by one care worker would not be a more accurate reflection of a call’s length than the commissioned length.
  6. The faults I have identified mean the Council’s overcharging is likely to be much higher than £4,023.73. To remedy the injustice to Mrs Y, the Council needs to recalculate her charges. It needs to do this based on average recorded call times, as the commissioned calls appear to have been too long.
  7. The faults I have identified have had an adverse impact on Mrs Y because she is a full cost payer. Those who pay a contribution towards the cost of their care (rather than the full cost) are unlikely to have been affected. However, the Council needs to consider whether other full cost payers have been affected in the same way as Mrs Y and, if so, identify them and remedy any injustice they may have been caused.

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Agreed action

  1. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the Care Provider and the Council, I have only made recommendations to the Council.
  2. I recommended the Council:
    • Within four weeks, writes to Mrs Y’s family apologising for the faults identified in this statement and pays Mr X £250 for the time and trouble he has been put to in pursuing the complaint:
    • Within six weeks, recalculates the charges for Mrs Y’s care based on average recorded call times;
    • Within eight weeks:
      1. works with the Care Provider to significantly reduce the number of unlogged calls;
      2. reviews the practice of defaulting to commissioned calls when one care worker logs in but the other does not; and
      3. considers whether other full cost payers have been affected in the same way as Mrs Y and, if so, identify them and remedy any injustice they may have been caused.

The Council has agreed to do this.

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Final decision

  1. I have completed my investigation on the basis there has been fault by the Council causing injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman

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