Summary: Mrs B complained about the way the Council carried out a financial assessment for her sister, Miss C who lacked capacity to understand the process. We found the Council at fault for failing to contact Mrs B about or provide her with information regarding the financial assessment. The Council to write off the outstanding debt and pay Mrs B £200.

The complaint

1. Mrs B complained on behalf of her sister Miss C, that the London Borough of Barnet (the Council) misadvised Mrs B in July 2021 about how Miss C’s care place would be funded and failed to provide her with information that the COVID funding would be ending in March 2021. This caused Mrs B and Miss C confusion and distress when they received a large bill.

Back to top

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)

Back to top

How I considered this complaint

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Care and Support Statutory Guidance

5. The guidance says that where a person lacks capacity, they may still be assessed as being able to contribute towards the cost of their care. However, a Council must put in place policies regarding how it communicates, how it carries out financial assessments and how it collects any debts that take into consideration the capacity of the person as well as any illness or condition. Councils are expected to use their social work skills both to communicate with people and also to design a system that works with, and for, very vulnerable people. Sometimes it is useful to consult with and engage with family members.
6. It also states that Councils should be clear and transparent so people know what they will be charged. They should also ensure there is sufficient information and advice available in a suitable format for the person’s needs to ensure that they or their representative are able to understand any contributions they are asked to make. Councils should also make the person or their representative aware of the availability of independent financial information and advice.

COVID19 easements

7. As part of the COVID19 relaxation of some statutory requirements, Councils were able to charge people retrospectively for the care and support they received during this period subject to them giving reasonable information to them in advance. But Councils still had to ensure that sufficient information and advice was available in suitable formats to help people understand any financial contributions they were asked to make. They were also expected to consult and engage with family members, advocates and/or someone who had legal authority to make financial decisions on behalf of people who lack capacity.
8. The Council did not formally notify the Government it was applying the easements to its practices.

What happened

9. Mrs B has power of attorney for her sister Miss C who has vascular dementia. In April 2020 Miss C was discharged from hospital and placed in a care home (the Home). The case notes show that a social worker told Mrs B that the health authority would be funding the placement under COVID19 legislation until the COVID19 situation had stabilised.
10. On the 16 March 2021 the NHS sent Miss C a letter addressed to her care home saying that the emergency COVID19 funding was ending, and that Miss C was not eligible for any other type of healthcare funding, so the Council was now responsible for her care needs. It said the Council would be in touch within the next fortnight with further information which may involve a financial assessment.
11. The letter said it had also been sent by email to Mrs B’s email address. Mrs B says she did not receive it.
12. On 5 April 2021 the Council sent Miss C a financial assessment outcome letter. It said she had to make a contribution towards the cost of her care. It did not speak to Miss C or Mrs B before reaching this decision and did not request any information from Miss C. The Council based the assessment on information it obtained from the Department of Work and Pensions (DWP).
13. It says it sent invoices to Miss C at the Home from April 2021 onwards and did not receive any queries or challenges.
14. In July 2021 Mrs B received a letter saying the Home was closing and Miss C had to move. The new care home asked Mrs B how Miss C was funded and Mrs B replied that it was under the COVID19 rules. The Council then contacted Mrs B to say that Miss C would have to fund her own care at the new home. She also said Miss C owed money since April 2021 and would send Mrs B the bills.
15. Miss C moved to a new care home on 31 July 2021 and has paid for her own care since then.
16. Mrs B contacted the Council to say this was the first information she had received about Miss C paying for her care. As far as she was aware COVID19 had not stabilised and so the health service was still paying the fees. She asked why she had not received any notification that the funding was stopping. She understood that Miss C would have to pay for her care when the COVID19 funding ended but she had not been informed this had happened.
17. She eventually spoke to the Council on 28 September 2021.The Council said it would get back to her with evidence that she had been told about the changes.
18. She did not receive a reply, so she contacted her MP who wrote to the Council at the beginning of October 2021. The Council replied on 11 October 2021. It said the letter of 16 March 2021 from the NHS informing Miss C that the COVID19 funding was ending, had been emailed to Mrs B so she knew that the funding was stopping. It agreed it may have used confusing terminology in April 2020 over how long the funding would last but the letter of 16 March 2021 clarified this. It said Miss C owed £2410.

Complaint

19. Mrs B complained to us in January 2022. We asked the Council to consider the complaint through its complaints procedure. The Council sent its first response at the beginning of February 2022. It agreed that the Council misadvised her in July 2021 over when the COVID19 funding would stop. It apologised for this but said the financial assessment was correct and should stand. It also said that it had given the correct information to Mrs B and Miss C in March 2021.
20. Mrs B was not satisfied with the response and escalated her complaint to stage two of the complaints procedure. The Council responded in March and upheld its stage one response. It apologised for the confusing advice in April 2020 but said Mrs B had been informed of the change in March 2021 and the financial assessment letter had been sent to Miss C in April 2021. It also said the Council had delivered workshops to staff explaining how care was funded after hospital discharge.

Analysis

21. The Council told Mrs B in April 2020 that the health service would fund Miss C’s care until COVID19 stabilised. This was an open-ended statement but given that it was at the beginning of the pandemic it was not unreasonable.
22. I accept the health service wrote to Miss C at the Home in March 2021 to inform her that the funding was ending. She would not have understood this letter given her condition. The health service intended to email this to Mrs B but there is no evidence that it did so, and Mrs B is clear she did not receive it. I do not doubt that had she received it she would have made further enquiries about the care fees. This was not fault by the Council, but I do not think the Council can rely on this letter as evidence that Mrs B knew that the COVID19 funding was ending, and that Miss C would be financially assessed.
23. The Council then carried out a very light-touch assessment based only on information from the DWP. It did not attempt to contact Miss C to obtain more accurate information, ascertain whether she had capacity to understand the process or whether it should contact a representative. This information would have been relatively easy for the Council to have established. It was fault not to do so. Miss C would not have understood the Council’s letter of 5 April 2021 and as the Council did not send it to anyone else, no-one was aware that she now had to make a contribution to her care.
24. The guidance states that the Council should have policies in place to consider how it communicates with vulnerable people who lack capacity and it may be reasonable to speak to family members when carrying out a financial assessment. Given Miss C’s condition, the Council should have attempted to contact Mrs B in respect of the need for, and outcome of a financial assessment. Its failure to do so was fault and meant Mrs B only found out about the situation over three months later when Miss C had to move to a new home.
25. The information it provided was not clear and transparent and meant neither Mrs B or Miss C were able to understand the contributions they were required to make. Even taking into account the possible statutory requirements due to COVID19, the Council should still have implemented this basic requirement.
26. The Council then exacerbated the situation by delaying in responding to Mrs B’s enquiries for three months and only after her MP intervened, This was fault which caused avoidable distress and frustration to Mrs B.

Back to top

Agreed action

27. In recognition of the injustice caused to Mrs B and Miss C, I recommended the Council, within one month of the final decision:
• writes off the outstanding debt for care fees between April and July 2021; and
• pays Mrs B £200 for her time and trouble in pursuing this matter.
28. The Council has agreed to my recommendations.

Back to top

Final decision

29. I consider this is a proportionate way of putting right the injustice caused to Mrs B and Miss C and I have completed my investigation on this basis.

Back to top

Investigator's decision on behalf of the Ombudsman