Summary: There was fault in the initial calculation of the contribution and in some of the invoices the Council sent. There was further fault as the Council disclosed information about Ms B which it should not have done. We find no fault in the Council’s help in finding residential accommodation for Ms B for a short period of time and Ms B’s stay at that accommodation. The Council has corrected the error in the contribution and invoices and backdated any changes and has offered £500. These are appropriate remedies for the fault that we have found.

The complaint

1. Ms B complains about the Council’s decision to charge her for her package of care without completing a full financial assessment. She says she did not know the Council would charge her for the care. She says the Council made mistakes in its calculation of her contribution and the invoices and disclosed confidential information about her. She says she did not give consent to a temporary stay at residential accommodation.

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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. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
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

5. I have considered the information sent by Ms B and the Council, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

6. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge.

Meeting needs

7. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs.

Safeguarding duty

8. Section 42 of the Act says a local authority must make necessary enquiries if it reasonably suspects an adult who has care and support needs is, or is at risk of, being abused or neglected and unable to protect himself against the abuse or neglect or risk of it because of those needs.

Financial assessment

9. Councils must assess a person’s finances to decide what contribution he or she should make to the cost of their care.

Refusal of financial assessment

10. If a person refuses a financial assessment or the council is unable to carry out a financial assessment because of the adult’s refusal to cooperate with the assessment, then the local authority is treated as having carried out the financial assessment.

Direct payments

11. A person can choose to receive direct payments to arrange the care and support themselves.

What happened

12. Ms B has disabilities which mean she has a need for additional care and support. She lives with her partner Ms C who is her main carer.

Needs assessment – August 2019

13. The Council assessed Ms B’s needs in August 2019. The social worker recommended a package of 2 x 4 hours support per week in addition to the care Ms B received from Ms C.

Financial assessment – September 2019

14. The Council started to provide a package of support from 15 August 2019, but did not start charging Ms B until 21 October 2019.
15. The social worker visited Ms B on 3 September 2019 and Ms B signed a direct payment agreement. The direct payments were managed by a managed account company, but the direct payment agreement meant that Ms B had flexibility in when the care was provided.
16. An officer from the Council’s financial assessments team spoke to Ms B and then wrote to her on 10 September 2019 and said:
• The Council had to carry out a financial assessment of any person who received care from the Council.
• Ms B had said that she wanted to do a postal financial assessment so the finance officer included the financial assessment form with the letter. Ms B should return the form and any evidence within 14 days.
• If Ms B did not return the form within 14 days, then she would have to pay the full cost of her care package which could be up to £375 per week.
• If Ms B needed help completing the form, she should contact the officer.
17. The finance officer wrote to Ms B again on 3 October 2019 as Ms B had not returned the financial assessment form. She said that, if Ms B did not return the form within 7 days, she would need to pay the full cost of her care package which could be up to £375 per week.

Letter – 25 October 2019

18. Ms B had not returned the financial assessment form but the finance officer carried out a light touch financial assessment of Ms B’s finances based on information relating to her benefits. The officer said Ms B’s maximum contribution would be £239.15, but as the package only cost £144.13 per week that was the contribution Ms B had to make.

Visit – 17 December 2019

19. The social worker visited Ms B who was supported by her personal assistant. The social worker told Ms B that one of the reasons of her visit was to discuss the need to complete the financial assessment. However, most of the visit was taken up to discuss the major adaptations works the Council was planning to do to Ms B’s home.
20. The social worker organised a further visit for 2 January 2020 to complete the financial assessment. The social worker informed Ms B that she would need to provide an up-to-date bank statement and details of her benefits for that visit. It is my understanding that the visit was then moved to 13 February 2020 because the social worker was ill.

Letter – 2 February 2020

21. The Council wrote to Ms B and said that there had been an error in the calculation of her contribution and the weekly amount was reduced to £83.35. This was backdated to 21 October 2019.

Visit – 13 February 2020

22. The social worker visited Ms B to help her in filling in the financial assessment form. Ms B was also assisted by her personal assistant. Ms B provided some of the information but said she did not have any bank statements as she said she did not know she had to provide a bank statement.

Letter – 18 February 2020

23. The Council was planning extensive adaptation works to Ms B’s property which meant Ms B would have to move out temporarily. The Council proposed that Ms B moved into a nursing home that had a unit that specialised in helping adults with physical disabilities. She would need to pay £121.75 per week and the NHS and the Council would pay the balance.

Incident – 27 February 2020

24. There was an incident witnessed by Ms B’s care worker and the care worker rang the police.
25. The Council found an emergency respite placement for Ms B. The placement was the nursing home which the Council had previously suggested when Ms B was going to move out while the works to her house were taking place. Ms B moved into the Home on the same day.
26. The Council spoke to the Home’s manager and the manager agreed to book the room for two weeks but said that was subject to Ms B agreeing to stay. Ms B could choose to leave earlier as she had the capacity to make that decision.
27. The Home provided a respite/short stay care plan which set out Ms B’s needs and how the Home would meet her needs. The plan said:
• ‘She uses normal wheelchair. Needs help to move around.’
• ‘Ms B uses normal wheelchair while in the home but has power wheelchair at her own home. Has history of falls. Needs one carer to mobilise in wheelchair.’
28. The social worker visited Ms B on 3 March 2020. Ms B asked whether the placement at the Home was free and the social worker said there was a standard charge and the Home would invoice her for the contribution.
29. At this stage the plan was that Ms B would return to home. Ms B and the social worker discussed the plan. Ms B asked if the existing care agency could provide more hours of support and the social worker said it may be a different provider. Ms B said she did not require 24/7 support but thought that 3 calls a day would meet her needs. The social worker said the case would be reviewed next week and Ms B agreed to remain at the Home until arrangements for a safe discharge could be made.
30. Ms B moved out of the Home on 17 March 2020 and moved back with Ms C.

Complaint – 18 June 2020

31. Ms C’s mother complained to the Council on behalf of Ms B. Ms B then brought her own complaint to the Ombudsman.
32. I have summarised the complaints that I have investigated.

Financial assessment

33. Ms B said:
• The Council had failed to inform her that she would have to make a financial contribution to her care package.
• The Council put a support package in place without first completing the financial assessment.
• The Council made errors in its calculation of the contribution.
• Ms B received an invoice from the Council in March 2020 for £700, but then received an invoice from the care agency in May 2020 for £3,292.
• The Council did not properly explain direct payments to Ms B.
34. The Council replied to the complaint and said:
• It had sent Ms B requests by post and by telephone to complete the financial assessment from September 2019 onwards and the social worker had visited Ms B to assist her in completing the forms.
• Ms B had not completed the financial assessment so the Council calculated the contribution on the basis of a light-touch financial assessment which it was entitled to do.
• The Council offered Ms B a full financial assessment and said this could be carried out by post, email or telephone. It explained that this assessment would take into account any disability related expenditure but warned her that this could mean her contribution could go up or down.
• The Council sent a further financial assessment form to Ms B on 21 July 2020.
• Ms B has not returned the financial assessment form.
• In terms of the direct payments, the Council said the social worker discussed direct payments with Ms B in March 2019. It was agreed that Ms B needed flexibility in the care that was provided. Ms B signed the direct payment agreement in September 2019.
• The Council upheld the complaint about the errors in the contribution. The Council initially said Ms B’s contribution would be £144 per week. It later admitted that it had miscalculated and the contribution should be £83. The Council re-issued the invoices backdating them to 21 October 2019.
• The invoice of £770 was incorrect as it was based on the higher contribution rate of £144 per week instead of £83. The Council would amend the invoice.
• The invoice for £3,292 should have been sent to the Council and not Ms B. The Council had reminded the care agency not to send invoices to the client.

Emergency admission against her will

35. Ms B said:
• She had been forced against her will into the emergency admission at the nursing home.
36. The Council said:
• The Council said it found the placement in ‘very difficult and distressing’ circumstances and said it had to ‘meet her needs quickly and safely’. It had no power to force Ms B to go into respite as Ms B had the mental capacity to make decisions about where she wanted to live.
• The records showed Ms B agreed to stay in the Home. There was no indication that Ms B ever said she wanted to leave or that she was ever prevented from leaving.

Payment for the emergency admission and later care

37. Ms B said:
• She had not been told that she would have to pay a contribution towards the cost of the respite admission at the Home.
• The Council had miscalculated the charges while she was at the Home and the charges when she returned to live at home.
38. The Council said:
• Ms B knew that she would have to pay as the Council had told her what the cost of the Home would be when it had proposed the Home as a respite option while the works were taking place.
• The Council said there was a standard weekly charge of £121.75 for respite. The initial invoice that had been sent of £724.20 was incorrect and the correct invoice for 19 days respite was £330.46
• The Council then admitted it had invoiced Ms B for support at home while she was at the respite placement in the Home. The Council credited Ms B with £166.60 for this error.
• Ms B returned home on 17 March 2020 and the care worker visited on 19 March 2020, but Ms B was not at home. As Ms B had not cancelled this visit, she would still be charged for it
• Ms B contacted the Council on 26 March 2020 and asked them to suspend the service because of the Covid pandemic. The Council agreed to do so but the service was not suspended and the Council continued to send invoices. The Council agreed to cancel any invoices after 26 March 2020.

Disclosure of information

39. Ms B said:
• On 10 July 2020 the Council sent its complaint response to Ms C’s mother and Ms B but copied Ms C and Ms B’s mother into the response.
• On 5 August 2020, the Council sent confidential information about Ms B to Ms C’s mother. This information was not necessary to understand the complaint.
40. The Council upheld the complaint and said:
• The information should not have been disclosed and it was ‘extremely sorry’ for the distress this had caused.
• As a result of the complaint, staff would receive further data protection training and the Council would undertake specific training with the social worker and manager involved in the incident.
• The Council also formally reported the incident to its information management team for a formal consideration of the incident and the remedial actions recommended.

Further information relating to the Ombudsman’s investigation

41. Ms B made a new complaint to the Ombudsman which she had not made to the Council. She said she did not have her powered wheelchair with her during her respite stay at the Home which meant she could not leave.
42. The Council replied and said Ms B had her crutches and self-propelled wheelchair at the Home. The move to the residential placement was done in an emergency and it would not be unusual for the Council to move the electric wheelchair at the later date in those circumstances. There were no records to show Ms B asked for her powered wheelchair.
43. The Council provided a further response in relation to the complaint that Ms B said she did not know she would have to pay for the stay at the residential placement.
44. The Council said it had reviewed the case notes of 27 February 2020 and they did not show that the cost of the placement had been discussed on that day. The duty team manager on call said it would have been a requirement, but could not recall whether it had been discussed. The records showed the charges were discussed on 3 March 2020. The Council said that, in light of this, it would cancel the charges from 27 February 2020 until 3 March 2020.
45. There was further email correspondence between Ms B and the Council between September 2020 and February 2021. Ms B was seeking further clarification on how the Council calculated the contribution, before she sent the information for the financial assessment. She was concerned by the Council’s comment that the contribution could increase as well as decrease as a result of the assessment. She wanted to be certain that the contribution would not increase but the Council said it could not say that until the financial information had been provided.

The nursing home’s notes

46. I have read through the daily care notes from the Home for the period that Ms B was staying there. I wanted to see whether there were any records relating to Ms B saying she wanted to leave or being restricted in her movements.
47. On 27 February 2020 Ms B arrived in a manual wheelchair accompanied by her personal assistant. The Home noted that Ms B was able to say and express what she needed.
48. On 28 February 2020 Ms B went to a shopping centre with her family during the evening.
49. The records showed that Ms B often asked staff for assistance and moved to different areas of the Home. She was a smoker so was often assisted in going for a smoke. There are no records relating to Ms B asking to leave or being refused permission to leave.
50. On 6 March 2020 Ms B’s personal assistant visited and took Ms B out for the afternoon. On 10 March 2020 and 11 March 2020, Ms B’s personal assistant visited and took Ms B out.
51. On 17 March 2020 Ms B was out of the Home for most of the day and returned around 9.30 pm. She then went back out and returned at 11:00 pm. The record for the same day shows that Ms C came in the afternoon at teatime to pick up Ms B but Ms B was not ready. She was asked to come back in an hour which she did. The records for the last day are therefore slightly contradictory but it is not in dispute that Ms B left the Home that day.

Analysis

Financial assessment

52. I find no fault in the Council’s communications regarding the financial assessment. The Council was clear from the outset in September 2019 that Ms B would have to pay for the care package and that the contribution would depend on her financial assessment.
53. The letter in September 2019 and the subsequent chasing letters explained that Ms B had to return the financial assessment to the Council. The letters explained that, if she did not provide the financial information, the Council could charge her for the entire cost of the package.
54. The Council also tried to assist Ms B several times in completing the financial assessments by visiting her.
55. Since then, the Council has offered Ms B a full financial assessment on several occasions.
56. The regulations say the Council can be treated as ‘having completed a financial assessment’ if the person has not cooperated with the financial assessment. Therefore, I find no fault in the Council’s decision to decide to ask Ms B to pay the contribution and to base the contribution on the light touch assessment.
57. There was fault in the original calculation of the contribution and the Council has already upheld this complaint. There was also fault in the care agency sending an invoice directly to Ms B which should have been sent to the Council.
58. In terms of the direct payments, there is evidence the Council discussed this with Ms B. The social worker also visited Ms B and Ms B signed the direct payment agreement.
59. In any event, Ms B was only responsible for paying the contribution (£83.35) which would have been the same amount regardless of whether she received a directly commissioned service or a direct payment. Ms B was not responsible for managing the direct payments as this was done by a direct payment management company. The direct payment agreement meant that she had flexibility in when the care workers would attend, but did not affect the amount she had to pay.

Emergency admission against her will

60. I do not uphold the complaint that the Council failed to obtain Ms B’s consent for the emergency admission to the Home and stopped her from leaving the Home.
61. The Council had to deal with an emergency. It had two legal duties towards Ms B. It had a duty to ensure that Ms B’s needs for care and support were met. But it also had to meet its safeguarding duty in relation to Ms B as she was a vulnerable adult who was at risk of abuse and neglect and who may be unable to protect herself.
62. The Council’s options were limited as Ms B could not remain in the house. The Council offered a short-term respite solution which was a move to a Home.
63. There was no indication from the documents I have seen that Ms B disagreed with this move on the day (27 February 2020) or later days.
64. The records for 3 March 2020 showed that the social worker visited Ms B to discuss the future plans. Ms B was planning to return home, but would need a larger package of support. Ms B agreed to this plan and agreed to remain at the Home while the Council put the amended package of support in place.
65. There was also no evidence, from the documents I have read, that Ms B was prevented from leaving the Home. There was evidence Ms B left the Home several times, assisted by her family or her personal assistant.
66. I accept that Ms B did not have her powered wheelchair and I agree it would have been good practice for the Council to transport the powered wheelchair to the Home after Ms B moved there. I note the Home’s care plan set out how Ms B’s needs for mobility could be met when she used her other wheelchair. Also, there was no evidence Ms B asked for her powered wheelchair at the time and there was evidence that she was assisted in her mobility, in line with the care plan, whenever she asked for it.

Payment for the emergency admission and later care

67. There were repeated mistakes in the Council’s billing relating to the Home stay and the support after Ms B left the Home and this was fault.
68. The Council initially miscalculated the charge for the stay and said Ms B had to pay £724.20 when the correct calculation for 19 days was £330.46.
69. The Council then made a second error by invoicing Ms B for support at home while she was at the respite placement in the Home. The Council then made a third error as it continued to invoice Ms B for her care package at home after Ms B had informed the Council on 26 March 2020 that it should suspend the service.
70. The Council has now also said that it could not be certain that it told Ms B that there would be a charge when Ms B moved into the Home on 27 February 2020.

Disclosure of information

71. The Ombudsman does not normally investigate complaints about disclosure of information as the ICO is better placed to deal with those. However, in this case, the Council had already upheld the complaint and the only question was whether the remedy was appropriate. We therefore agreed to consider this.
72. So to be clear, there was fault as the Council disclosed personal information about Ms B to other people which it should not have done. It made this mistake not once but twice, which made matters worse.

Injustice and remedy

73. There was a clear injustice to Ms B from the fact that the Council miscalculated the contribution initially and made several mistakes in invoicing Ms B for care. Ms B was being incorrectly charged.
74. The Council has already provided the following remedies:
• It recalculated the contribution and backdated this to 21 October 2019.
• The Council did not charge Ms B for care and support before 21 October 2019 so Ms B received two months’ care free.
• It recalculated the charge for the respite and reduced the invoice from £724.20 to £330.46.
• It cancelled the invoices which should not have been raised for the care package after 26 March 2020 when the care had been cancelled.
• In response to the Ombudsman investigation, it agreed to cancel the charges for the respite care between 27 February 2020 when Ms B moved into the Home and 3 March 2020 when she was informed that there would be a charge.
75. Ms B also suffered distress as a result of the Council’s disclosure of information about her to her mother and Ms C’s mother.
76. The Ombudsman’s remedies guidance says that we generally pay between £100 to £300 for distress caused by fault although we can exceed this amount if the distress was severe or prolonged. The Council has offered a payment of £500 to Ms B which is an appropriate remedy for the fault.
77. The Council has already provided further data protection training as a result of the complaint and has formally reported the incident to its information management team so we do not recommend a further service improvement.

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Agreed action

78. The Council has agreed to take the following actions within one month. It will:
• Apologise to Ms B in writing.
• Pay Ms B £500.

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Final decision

79. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman