Summary: The Council failed to notify Mrs X correctly of the charges payable for her care. Mrs X received the care and owes a debt to the Council for it: however, the Council acknowledges that its failing lost the family the opportunity to change the care provided, and will make a payment in recognition of that and of the stress and inconvenience caused.

The complaint

1. Mr A (as I shall call the complainant) complains the Council delayed for two years in notifying him the care provided for his mother Mrs X was chargeable.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I considered the information provided by Mr A and by the Council. Both parties had an opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

5. 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)
6. 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.
7. Intermediate care and reablement support services are for people usually after they have left hospital or when they are at risk of having to go into hospital. They are time-limited and aim to help a person to preserve or regain the ability to live independently. Regulations require intermediate care and reablement to be provided without charge for up to six weeks. This is for all adults, whether or not they have eligible needs for ongoing care and support. Councils may charge where services are provided beyond the first six weeks but should consider continuing providing them without charge because of the preventive benefits. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)

What happened

8. Mrs X suffered nerve damage during an operation in November 2018 and needed care at home following her return. Mr A says Mrs X had a period of intermediate care after her discharge from hospital which was not charged for.
9. The Council says its reablement team, HomeFirst, visited Mrs X in January 2019 and left a financial assessment form, the AF1, at her home for completion.
10. The Council says it sent a letter to Mrs X on14 February 2019 advising that the care was chargeable. Its records state: “Home First have completed a period of re-ablement care on 13/02/2019, service becomes chargeable from 14/02/2019. POLR added, letter sent.”
11. Mr A says they never received the letter from the Council. He says on several occasions the family asked the care provider who was paying for the care and on each occasion they were told the Council was paying. He says the HomeFirst manager told him there was no need to complete an AF1 as the Council had completed a ‘Resource Allocation System’ form for Mrs X.
12. The Council wrote to Mrs X again in May 2019 and October 2019 saying it was changing its care contract with the care provider but her care would not be affected.
13. In June 2021 the Council’s finance team contacted Mr A’s sister (Ms B) to ask why the family had not completed an AF1. She told them she had not been sent an AF1 for Mrs X. The Council’s records state: “I informed (Ms B) that her mother was chargeable for care from 14.02.19. (Ms B) stated that her mother has above the threshold in savings, I advised her that if her mother had above £23250.00 in savings from 14.02.19 she would be charged full cost for care from this date and would receive an invoice charging her from this date. (Ms B) states that she has been trying to find out about the cost of care and who was paying for this for some time but was informed she did not have to worry about it.”
14. The AF1 was completed over the telephone. Mrs X opted to pay the full cost of her care and not disclose her financial details. The Council sent an invoice for £13,382.00

The complaint

15. In August Ms B wrote to the Council to complain. She said in two and a half years they had never been told there was a charge to pay for Mrs X’s care. She said if they had known about the charge they would have asked relatives to help more to lessen the cost of care and pointed out that they had cancelled visits when she herself had been able to stay with Mrs X. She said she failed to see why a continual oversight by the Council should have penalised Mrs X.
16. The Council responded in October. It said during Mrs X’s hospital stay Ms B had told a social worker the family was willing to pay for Mrs X’s care if needed. It said there was no record that the care agency had advised the family did not need to pay, and it was not authorised to give that advice in any event. It did not uphold the complaint.
17. Mr A responded to the Council. He asked why, if the Council now said Mrs X was liable for the full cost of her care, the Council had not explained that in the previous two and a half years. He said no invoices had been sent during that time.
18. The Council replied that it would not investigate further. Mr A complained to the Ombudsman.
19. The Council says although its records state it sent the letter about charges on 14 February 2019, it cannot trace a copy of the letter.
20. The Council says its Finance Team run a report on a fortnightly basis to identify cases where an AF1 has been issued but not returned, and these are then followed up. It adds “Regrettably, in this case, the recording of the issue of the AF1 not being received had not been undertaken in such a way that it would be picked up by the report.” It says it has now improved its systems to avoid a recurrence.
21. The Council says in its view “the chargeable nature of the service was sufficiently outlined to the complainant on numerous occasions”.

Analysis

22. Although the Council says it wrote to Mrs X with details of the charges, it has not provided any documentary evidence of that letter or of the other occasions when it says it explained the chargeable nature of the service. That is fault on the part of the Council.
23. The Council failed to pursue the non-return of the AF1 for over two years and acknowledges that was due to a failing in its system. That meant very many opportunities were missed to correct the situation, and was also fault which caused injustice to Mrs X.
24. Mrs X has had the benefit of care provided by the Council’s commissioned provider and owes a debt to the Council for that. However, as a result of the Council’s actions Mrs X’s family lost the opportunity to make different decisions about the level and provision of her care, or to dispute the level of the fees. In addition they suffered the shock of receiving a large bill, and were put to time and trouble which they should not have been if the Council had monitored the situation correctly.

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Agreed action

25. Within one month of my final decision the Council will apologise to Mrs X and her family;
26. Within one month of my final decision, the Council will waive half the charges for the period February 2019 to July 2021.

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Final decision

27. I have completed this investigation and I find there was fault in the actions of the Council which caused injustice to Mrs X and her family. Completion of the actions at paragraphs 25 and 26 will remedy the injustice.

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Investigator's decision on behalf of the Ombudsman