Summary: The Council did not provide full information about the care fees Mr X was to pay and failed to carry out a prompt financial assessment. Mr X received the care and owes a debt to the Council. The Council acknowledged that its inaction caused Mr and Mrs X to lose the opportunity to make a different decision about the care home chosen for Mr X and whether Mrs X could afford the third party top up fees. The Council agreed to make a payment in recognition of that and of the stress and inconvenience caused.

The complaint

1. Mrs X complained about an invoice the Council sent for her husband’s contribution to his care and support charges.
2. Mrs X said the Council failed to follow the correct procedure because it did not complete a financial assessment and did not give full details about her husband’s contribution to his care and support charges from the outset. The Council then waited two years before sending the invoice. She also said the Council’s communication has been lacking throughout.

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The Ombudsman’s role and powers

3. 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)
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)

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How I considered this complaint

5. As part of the investigation I have considered the following:
• The complaint and the documents provided by the representative and my conversation with her.
• Documents provided by the Council and its comments in response to my enquiries.
• The Care Act 2014, The Care and Support Statutory Guidance 2014, and The Care and Support (Charging and Assessment of Resources) Regulations 2014.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Legislation and guidance

Care Plan

7. 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.

Personal Budgets

8. 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.

Charging for permanent residential care

9. The Care Act 2014 provides a single legal framework for charging for care and support under sections 14 and 17. It enables a council to decide whether to charge a person when it is arranging to meet a person’s care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
10. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person has to pay towards the cost of their residential care.
11. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person is entitled to access council support to meet their eligible needs. People who have over the upper capital limit are expected to pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.

Charging for social care services

12. 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.
13. 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 )
14. 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)
15. 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)
16. 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)

Top-up payment

17. If no suitable accommodation is available at the amount identified in the personal budget, the council must arrange care in a more expensive setting and adjust the budget to ensure it meets the person’s needs. In such circumstances, the council must not ask anyone to pay a ‘top-up’ fee. A top-up fee is the difference between the personal budget and the cost of a home.
18. However, if a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if:

• the person can find someone else (a ‘third party’) to pay the top-up; or
• the resident has entered a deferred payment scheme with the council and is willing to pay the top-up fee themself.

19. In such circumstances, the council needs to ensure the person paying the top-up enters a written agreement with the council and can meet the extra costs for the likely duration of the agreement.

The Councils charging policies

20. The Councils policy reflects the regulations and states if an individual has savings of more than £23,250 they will have to pay for the care home themselves. The value of an individual’s home is ignored if their spouse still lives there.
21. Regarding income, an individual is left with a minimum of £24.90 personal expenses allowance a week. The remainder of their income will be the amount used to pay towards care home fees.
22. The Council says they will normally complete a financial assessment within 28 days of them receiving the financial assessment form and accompanying information. The Council says they will send a letter to the individual letting them know how much they will need to pay, how it has been calculated and when charges will be collected.
23. If there is a long delay in the financial assessment process, the Council says it will send an invoice for the first payment and tell the individual when they need to start making payments.
24. In response to my enquiries, the Council said it conducts an annual reassessment of an individuals financial ability to pay fees and charges.

What happened

25. I have summarised below the key events; this is not intended to be a detailed account.
26. Mrs X cared for her husband, Mr X, at home with the support of carers. At the beginning of 2018, Mr X could not manage at home. The Council reviewed his care and support plan and gave advice on moving into a residential care home.
27. Records provided by the Council show officers discussed fees and charges for residential care verbally with Mr and Mrs X. In response to my enquiries, the Council said it sent booklets to Mr and Mrs X explaining fees and charges. Mrs X does not recall receiving these.
28. The Council sent Mr and Mrs X an AF1 form in April 2018. Mrs X completed and returned this in May 2018 but did not include bank statements as asked. There is no record of the Council following this up.
29. Mr X moved into residential care in May 2018. The Council records show the home accepted the Council rate and no third party top up was required.
30. Mr X moved into a new care home in October 2018.
31. The Council emailed Mrs X in early October 2018 about the fees for the new placement. The Council explained it would pay the enhanced rate fees and Mrs X would pay a top up fee. There is no mention of Mr X himself contributing to the care home fees. This was confirmed in a signed contract. The contract states the ‘local authority contribution’ figure and the ‘third party contribution’ top up (paid by Mrs X) and total. ‘Your contribution’ (potentially paid by Mr X) is blank. Mrs X started making the third party top up fees directly to the home. There was no further communication about any further fees due.
32. The Council wrote to Mrs X in January 2019 enclosing an AF1 form. The letter states ‘If we work out that you need to pay a contribution towards the cost of your care and support services, these will start from 14 January 2019’. It then goes on to say, ‘If we do not receive the form by this date, we will assume that you have capital over the threshold of £23,250 and do not wish to tell us any financial information, and that you are willing to pay full cost of care that you have received from us from the 14th January 2019’. Finally, the letter says ‘We normally expect to tell you the outcome of the financial assessment within four weeks of us having received all of the information we need to complete the assessment. In exceptional circumstances this could be up to six weeks.’
33. The Council says it did not receive the information from Mrs X and telephoned her to chase it up in March 2019. Mrs X stated she didn’t recall receiving the form. The Council issued Mrs X with a new form.
34. Mrs X completed the form and returned it to the Council. The Council received and reviewed the AF1 form in March 2019 but Mrs X had not enclosed bank statements. The Council wrote to Mrs X in late March confirming receipt of the AF1 form and explained the bank statements were not included. The letter asked Mrs X to send bank statements within 14 days. The letter reiterated the financial assessment would be concluded on the information already provided if she did not provide bank statements.
35. The next correspondence from the Council about fees is in November 2020, following a gap of 20 months. The Councils letter stated the bank statements it sought in March 2019 were still outstanding. It therefore had completed the financial assessment based on the information it had so far. It concluded Mr X had to pay over £20,000 in fees and enclosed an invoice. The Council said it would review the assessment following receipt of the bank statements.
36. The Council said it waived fees from when Mr X moved into residential care in May 2018 to March 2019 as it had failed to contact Mr and Mrs X about the fees before then.
37. Mrs X says she sent copies of bank statements to the Council immediately upon receipt of the letter.
38. Mrs X says she telephoned the Council at the end of November 2020. There was no response after she had been kept on hold.
39. Mrs X says she telephoned the Council at the beginning of December 2020. The assessment team said they would consider Mrs X concerns.
40. Mrs X received an overdue invoice for fees towards the end of December.
41. Mrs X telephoned the assessment team in the middle of January as she had not received a response from her last call. The Council put the invoice on hold while the matter was referred to management. Management decided the invoice remained payable as there was no evidence the charges had not been explained.
42. The Council wrote to Mrs X in April 2021 after it had completed its annual review of fees. Mrs X called the Council. The Council said it would review the figures and told Mrs X to await an updated letter which she received later that month.
43. Mrs X received overdue invoices in May 2021 and June 2021. Mrs X tried to call the Council to discuss but there was no answer. She left a voicemail asking for a return call. The Council did not return Mrs X’s call.
44. Mrs X wrote to the Council in May 2021 expressing confusion about her husband’s care home fees. Mrs X did not receive a response.
45. Mrs X made a complaint to the Council in July 2021. The Council responded in September 2021.
46. Mrs X complained to the Ombudsman at the end of September 2021.

Analysis

Information provided about fees

47. A person must know, before care and support planning begins, an estimate of how much money will be available to meet their assessed needs. They must be given clear information about the total amount their care will cost and this should be broken down into the proportion the local authority will pay, and what amount (if any) the person will pay. Mr and Mrs X were not provided with this information in writing at the time of Mr X moving into residential care. This is fault.
48. The Council says it provided Mr and Mrs X with booklets about fees and charges. In response to enquiries it has provided notes of conversations with Mr and Mrs X which refers to Officers needing to conduct a financial assessment and the potential fees that may be due. It has not however followed the specific details up in a letter when Mr X moved into residential care. This is fault.
49. Email correspondence from the Council to Mrs X in October 2018 suggests no fees are paid by Mr X. It states the home accepts the council rate, plus a top up to be paid by Mrs X. It then refers to signing paperwork. The contract itself only lists the fees to be paid by the Council and the third party top up fee. The section where Mr X’s contribution to fees would be listed is blank. On receiving this information, Mrs X understood the only fees they had to pay were the third party top up fees. If Mr X was to pay fees, these should have been clearly set out in written correspondence and included within the contract. It was not. This is fault.
50. The Council stated in its complaint response to Mrs X that there was no evidence the charges had not been explained to her and Mr X. This is the wrong way round. The information about charges must be provided in writing and the Council must be able to evidence this. The Council did not, this is fault.

Delay in the Council conducting a financial assessment and sending an invoice

51. The Council has a clear procedure which says they will normally complete a financial assessment within 28 days of it receiving the AF1 form and accompanying information. The Council did not have all the information it needed to complete the assessment as Mrs X did not submit the bank statements. The Council says it did not complete the assessment as it did not have all the information it required.
52. The letter from the Council which enclosed the AF1 says if the information required is not received, it will assume the individual has capital over the threshold and is willing to pay for the full cost of the care. According to its own policy, the Council could have completed the calculations on this basis and started charging Mr and Mrs X from this point. It was 20 months later in November 2020 when the Council did so. This is a significant delay. This is fault.
53. The Council’s policy allows it to send an invoice for the first payment and tell the individual when they need to start paying if there is a long delay in the financial assessment process. In this case there was a long delay in the assessment process. The Council could have sent the first invoice while the assessment was continuing. The Council did not do this until 20 months later. This is a significant delay. This is fault.
54. The Council’s policy says it will send a letter to the individual letting them know how much they need to pay, how it has been calculated the amount and when charges will be collected. The Council delayed sending this letter for 20 months. This is a significant delay. This is fault.
55. The Council did not keep Mr and Mrs X informed throughout the assessment process. There was no correspondence for 20 months. This is fault.
56. The Council says in its response to my enquiries that it conducts an annual review. The Council did not conduct a review from the time Mr X moved into residential care to when the invoice was sent in November 2020. If it had done a review, the Council would have addressed the issues much earlier and the fees would not have escalated. This is fault.

How the Council handled correspondence and the complaint

57. Mrs X also complains the Councils communication about this matter has been lacking throughout. On trying to contact the Council to discuss and understand the matter, she has been met with unanswered and unreturned phone calls and delays. Mrs X explained when she does speak to someone on the phone about the invoices, the experience is usually hurried and unhelpful.
58. Mrs X submitted a complaint to the Council in July 2021. The Council sent a stage one response in September 2021 and failed to issue a stage two response. In response to enquiries, the Council explained as it was considering an in-depth investigation and due to staff absences, it could not progress matters quickly. The Council apologised for the significant delay.
59. Mrs X has expressed how scared and confused she was on receiving threatening letters and invoices for fees and charges which she did not know she had to pay. Mrs X has tried to reach out to the Council to understand the financial situation and support has not been provided. There has been significant delay in the Council dealing with the substantive matter and the complaint. This is fault.

Care chosen and care provided

60. Mr X has received the benefit of care provided but has not paid the fees due to the Council. The Council did not provide full information about the fees due and failed to carry out a financial assessment promptly. Mrs and Mrs X lost the opportunity to make a different decision about the care home chosen for Mr X and if they could afford the third party top up payments. Mrs X has suffered the shock of receiving a large bill and put to time and trouble sorting this out. She would not have done this if the Council had provided accurate information from the outset, followed up on correspondence and kept the situation under review.

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Agreed action

61. Within one month of my final decision the Council has agreed it will:
• apologise in writing to Mrs X;
• review the way it provides information about charging for care and processing financial assessments;
• waive half the charges for the period March 2019 to November 2020; and
• set up a payment plan to enable Mrs X to pay the remaining half of the charges.

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Final decision

62. I have now completed my investigation. We found fault in the actions of the Council which caused injustice to Mr and Mrs X.

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Investigator's decision on behalf of the Ombudsman