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West Sussex County Council (21 009 958)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 12 May 2022

The Ombudsman's final decision:

Summary: Mrs X complained the Council charged her wrongly for non-residential care. The Council did not charge Mrs X correctly and in good time, or properly explain what the charges were for. This resulted in avoidable financial loss, distress, and confusion, for which the Council agreed to pay a financial remedy to Mrs X. It will also review the information it provides when arranging non-residential care.

The complaint

  1. Mrs X complained the Council charged her wrongly for Council-commissioned home care. She said the Council:
    • invoiced her in May 2021 for care fees, even though she cancelled the care in September 2020 and paid the fees in full;
    • failed to respond to her repeated queries about the invoice, until after she received a final demand letter threatening court action; and
    • claimed the outstanding invoice was for a cancellation notice period which she agreed to pay. She said she did not agree to this and did not receive care during the notice period.
  2. Because of this Mrs X said she received threats of prosecution for the arrears and felt harassed which caused her stress. She wanted the Council to waive the fees for the notice period.

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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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  3. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
  4. If we are satisfied with an organisation’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

  1. I considered:
    • information provided by Mrs X and discussed the complaint with her;
    • documentation and comments from the Council about Mrs X’s care and associated charges;
    • relevant law and guidance, and;
    • the Ombudsman’s Guidance on Remedies
  2. 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

Charging for non-residential care

  1. 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. (Care Act 2014, section 14)

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. (Care and Support Statutory Guidance 2014, section 11)

  1. 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. It must carry out a financial assessment to decide what a person can afford to pay towards the cost of their care. It must then give the person a written record of the completed assessment. (Care and Support Statutory Guidance 2014, section 8)
  2. In some circumstances a council may choose to carry out a ‘light-touch’ financial assessment. This means it will treat a person as if a financial assessment has been carried out. A council can do this if it is unable to carry out a full financial assessment because of a person’s refusal to cooperate with the assessment. If carrying out a light-touch assessment a council must:
    • be satisfied based on evidence provided by the person that they can afford, and will continue to be able to afford, any charges due;
    • take steps to assure itself the person is willing, and will continue to be willing, to pay all charges due;
    • tell the person a light-touch assessment has taken place and make it clear they have the right to ask for a full financial assessment if they wish to do so, and;
    • ensure the person has access to sufficient information and advice, including the option of independent financial information and advice.

(The Care and Support (Charging and Assessment of Resources) Regulations 2014, section 10, and Care and Support Statutory Guidance 2014, section 8)

The Council’s care charging policy

  1. The Council’s policy says where it is going to meet a person’s needs, and a light-touch financial assessment is proposed, it will ask them to sign an agreement confirming they are willing, and will continue to be willing, to pay all charges due. (West Sussex County Council Policy for Care Act 2014 Charging for care and support, section 7)

What happened

  1. The Council assessed Mrs X’s care and support needs in June 2020 after it received a referral from her GP. It arranged for her to receive a morning home care visit each day, plus a weekly visit to support with shopping, from a third-party care provider. The Council’s records showed it asked Mrs X about her savings and on this basis referred her for a financial assessment, although Mrs X said this did not happen.
  2. The Council’s records showed that within a week it wrote to Mrs X to tell her about her personal budget and said it would contact her separately for financial assessment, to calculate her contribution to her care costs. The Council’s finance team rang Mrs X the next day, but she did not answer, so it sent her a letter. Two days later, Mrs X’s care package commenced. Three days after this the Council sent Mrs X a copy of her needs assessment, and some leaflets providing general information about her care and associated charges. Mrs X said she did not receive information about her personal budget and was not contacted about a financial assessment.
  3. One week after Mrs X’s care began, the Council reduced her daily morning visits to three days a week, at Mrs X’s request. The Council’s records showed that the following week its finance team spoke to Mrs X and arranged a telephone financial assessment for two weeks later. When the Council rang Mrs X for this agreed appointment, she did not answer. It then completed a light-touch financial assessment and wrote to Mrs X to tell her how much her contribution to her care costs would be. Mrs X said she did not receive information about the light-touch assessment or her care costs and did not receive any financial support from the Council.
  4. The Council’s records showed that around the same time, Mrs X asked to cancel the care. While the Council were processing this request, Mrs X queried why carers were still visiting her. The Council told her there may be a notice period for ending the care and contacted the care provider to query this. The care provider agreed to reduce its usual 28-day notice period in this instance and agreed an end date of fifteen days after Mrs X’s request to cancel. This end date was one week after Council records showed its finance team wrote to Mrs X about its light-touch financial assessment. Mrs X disputed that any conversations about notice periods took place.
  5. The Council’s records showed that during the notice period, Mrs X changed her mind and told the Council she wanted the morning care visits to continue. The Council checked this with Mrs X three days later and she confirmed this decision, so the care package remained in place. Ten days later the Council visited Mrs X and she told it the care was going well. Mrs X said she was not visited by the Council.
  6. The Council’s records showed that four weeks after it visited Mrs X, it phoned her to carry out an initial review of her care plan. Mrs X told it she wanted to cancel the care. The Council reminded Mrs X she had changed her mind during the notice period when she cancelled previously. She confirmed she wanted to cancel. Five days later the Council spoke to Mrs X again who confirmed her decision. The Council contacted the care provider which again agreed a reduced notice period, this time sixteen days from Mrs X’s request to cancel. The next day the Council phoned Mrs X to explain the notice period and agreed end date. It asked Mrs X if she wanted the care visits to continue during the notice period and she said she did. Five days later the Council wrote to Mrs X to provide a copy of its review and confirm it had cancelled the care package. Mrs X disputed that any conversations about notice periods took place.
  7. One week before the care ended, the Council sent Mrs X an invoice to cover the first five weeks of care charges. She paid this five weeks later.
  8. Over eight months after the first invoice, the Council sent Mrs X a second invoice, for the remaining seven weeks of care, including the sixteen-day notice period. Mrs X did not pay this and queried it with the Council’s finance team. Mrs X said the Council then sent formal demands and ultimately directed her to raise a complaint to resolve the issues, which she did three months after it had sent the second invoice. The Council issued its Stage 1 complaint response a month later and then its Stage 2 response a further three weeks later.

My findings

Financial assessment

  1. According to the Council’s records, shortly after its assessment of Mrs X’s needs it told her about her personal budget, as described at paragraph 9. The Council also tried to carry out a full financial assessment but could not do so as Mrs X did not engage with its pre-arranged appointment. Therefore, it carried out a light-touch financial assessment. The Council’s records show it:
    • based its decision about Mrs X’s contribution to her care fees on the evidence available to it at the time. It correctly took account of information about her benefits, and what she had told her needs assessor about her savings, to determine affordability;
    • ensured Mrs X was aware of its light-touch assessment by writing to her with full details of its calculations. In this same letter it told Mrs X she could query or dispute the light-touch assessment if she was not willing to pay the calculated contribution, and;
    • gave Mrs X clear details of who to contact if she had any queries about non-residential care charging.

Mrs X said she did not tell the Council about her savings, and did not receive information about her personal budget, light-touch assessment, or care costs. On the balance of probabilities, I am satisfied based on the Council’s detailed contemporaneous records that Mrs X did tell the Council an estimate of her savings when it asked, and the Council did write to her about the outcome of its assessment. I am satisfied the Council carried out its light-touch financial assessment without fault and took reasonable steps to ensure Mrs X was fully informed of this, as described at paragraph 11. Mrs X did not contact the Council to dispute this or ask for a full financial assessment.

  1. As described at paragraph 12, the Council’s policy is that when it proposes a light-touch assessment it will ask the person to sign an agreement to pay their calculated contribution. There is no evidence this happened in Mrs X’s case and Mrs X said it did not. However, I note COVID-19 restrictions were still in place when the Council wrote to Mrs X about its assessment. The Council explained in this letter it could not carry out face-to-face visits. As outlined in paragraph 21, I consider the Council took reasonable steps to make Mrs X aware of its assessment and offered her the opportunity to dispute this, in line with Government legislation. I do not consider the absence of a signed agreement to be evidence that the Council did not fully inform Mrs X of her care charges. Indeed, in her complaints to the Council and the Ombudsman, she did not dispute that she should have been liable for care charges, only the charges during the notice period.

Information provided about the notice period

  1. Mrs X said the Council did not discuss notice periods with her at any point. On the balance of probabilities, I am satisfied based on the Council’s detailed contemporaneous records that it did discuss this with her on both occasions when she asked to cancel the care.
  2. The first time Mrs X asked to cancel the care the Council told her there might be a notice period and had to query this with the care provider to confirm. This suggests both the Council and Mrs X did not know what the notice period was before this. Mrs X then changed her mind about cancelling the care, so was unaffected by the notice period. Mrs X then asked to cancel the care again six weeks later. I am satisfied that, when she asked to cancel the second time, it would have been reasonable for Mrs X to expect there would be a further notice period.
  3. However, there is no evidence the Council made Mrs X fully aware of the cancellation terms and notice period before the care began. I am satisfied this was fault. Despite Mrs X not knowing about a notice period at the outset, I do not consider this caused her an injustice. The Council told Mrs X about the notice when she asked to cancel the care the first time. The Council negotiated with the care provider to reduce its standard notice period to Mrs X’s benefit. It also asked if she would like the care to continue during the notice period, which she did, so she received the benefit of care visits during the notice period. I also believe it is unlikely knowing about the notice period at the outset would have led to Mrs X refusing the care package.
  4. The Council told Mrs X in its response to her complaint that it was considering process changes to make information on notice periods clearer. This was also reflected in its internal records about the complaint. However, I am not satisfied the Council made any process changes following this consideration and so have recommended it does so.

Invoicing for care charges

  1. The first invoice the Council issued covered the first five weeks of Mrs X’s care. In the first week of care, Mrs X received daily visits, and the cost for this week exceeded Mrs X’s calculated weekly contribution. Therefore, this calculated contribution is the maximum she should have paid for that week of care. This was followed by four weeks where the visits had reduced to three per week, thus reducing the weekly cost of care to less than Mrs X’s calculated weekly contribution. This means the maximum she should have paid for each of those four weeks was the actual cost of the care. The Council did not provide the Ombudsman with a copy of the first invoice, only the total amount charged. Based on this total amount I am satisfied the Council charged Mrs X the full cost of her first week of care, rather than her assessed contribution, which was lower. This was fault. Mrs X suffered a financial loss due to this fault by the Council and so it should repay her for this. However, I do not consider this fault caused distress or confusion to Mrs X, as she did not dispute the first invoice, and was unaware of any potential errors.
  2. The second invoice the Council issued covered the remaining seven weeks of Mrs X’s care, including the sixteen-day notice period when she cancelled the care. Therefore, the fees Mrs X did not pay were not solely for the disputed notice period. Care charges would always have been due until the point when Mrs X cancelled the care. Also, as described at paragraph 25, Mrs X received care visits during the notice period, so the Council was entitled to charge her for this. Therefore, I do not consider the Council should waive the charges for the second invoice.

Handling of invoice queries and complaint

  1. There was a significant and unexplained delay of over eight months between the two invoices. I consider this caused Mrs X some confusion about what the second invoice was for. Mrs X said that when she queried this, the Council failed to respond multiple times, until after it had sent a recovery letter threatening court action, which she said caused her distress. The Council then correctly directed her to its complaints procedure to resolve the issues. In its Stage 1 complaint response, the Council apologised for its lack of clear response to the queries Mrs X raised before submitting her complaint. Had the Council responded to Mrs X’s queries properly, she still would have been liable to pay the invoice. However, when Mrs X came to the Ombudsman her understanding was that the second invoice was solely for the notice period. The Council did not explain to her in its complaint response that this was not the case. I consider the significant delay between the invoices, and the Council’s failure to provide a clear explanation when Mrs X queried this, caused her avoidable confusion and distress. I am satisfied the Council should pay Mrs X a financial remedy to recognise this injustice.
  2. The Council took one month to issue a Stage 1 response to Mrs X’s complaint, and then a further three weeks to issue a Stage 2 response. This is longer than the Council says it will usually take to respond to a complaint. However, I note the Council did contact Mrs X two weeks after escalation to Stage 2 to apologise for the delay. I do not consider the additional time taken by the Council to respond to the complaint caused Mrs X significant injustice for which a further remedy is required.

Agreed action

  1. Within one month of my final decision the Council will:
      1. re-assess Mrs X’s care charges for the period covered by the first invoice it issued. It will retrospectively adjust the charges to reflect its assessment of Mrs X’s contribution to her care fees and repay her for the financial loss; and
      2. pay Mrs X £50, to recognise the avoidable distress and confusion caused by the Council’s failure to invoice for her care charges in good time, and to properly explain what the charges were for when she queried this.
  2. Within three months of my final decision, the Council will review the information it provides when arranging non-residential care, to ensure people are aware of any applicable cancellation notice periods before their care begins.

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Final decision

  1. I have completed my investigation. There was fault in that the Council did not charge Mrs X correctly and in good time, or properly explain what the charges were for, which caused her avoidable financial loss, distress, and confusion. The Council agreed to our recommendations to remedy this injustice and improve the information it provides when arranging non-residential care.

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Investigator's decision on behalf of the Ombudsman

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