Summary: Mr B complains on behalf of Mr M that the Council has wrongly charged Mr M for home care he did not want and should not be charged for. Mr B says this has caused Mr M a great deal of stress and upset and that he now has unjustified debt. We found fault which caused injustice. The Council has agreed to waive Mr M’s financial contributions.

The complaint

1. Mr B complains on behalf of Mr M that the Council has wrongly charged Mr M for home care he did not want and should not be charged for. Mr B says this has caused Mr M a great deal of stress and upset and that he now has unjustified debt. He wants the Council to cancel the invoices.

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What I have investigated

2. I have investigated events since September 2020. I explain at the end of this statement why I have not investigated matters before then.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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

7. I spoke to Mr B about his complaint and considered the information he sent, the Council’s response to my enquiries and:
• The Care Act 2014
• The Care and Support statutory guidance (“the Guidance”)
8. Mr B and the Council had an opportunity to comment on my first draft decision. Having considered the comments received, I changed my recommendations and issued a second draft decision.
9. Mr B and the Council had an opportunity to comment on my second draft decision. I considered any comments received before making a final decision.

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What I found

Care and support needs

10. The Care Act 2014 requires councils to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
11. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan. The plan should be proportionate to the needs to be met, and should reflect the person’s wishes, preferences and aspirations. When preparing a care and support plan the council must involve any carer the adult has.
12. 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.
13. The local authority must take all reasonable steps to reach agreement with the person for whom the plan is being prepared. If the plan cannot be agreed with the person, or any other person involved, the council should set out the steps it will take to ensure that the plan is signed-off. This may require going back to earlier elements of the planning process. People must not be left without support while a dispute is resolved. If a dispute still remains, and the local authority feels that it has taken all reasonable steps to address the situation, it should direct the person to the local complaints procedure. An adult with care and support needs may choose to refuse to have an assessment or decline support.
14. Councils should keep care and support plans under review. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget.

Charging for social care services: the power to charge

15. The law says a council may charge for care and support it has arranged to meet a person’s needs. 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 Guidance. The Council cannot charge more than the cost it incurs in meeting the assessed needs of the person. (Care Act 2014, section 14 and 17)

Financial assessments

16. Once the Council decides a person has eligible care and support needs, the law says it must carry out a financial assessment to see what contribution the person may have to pay towards the cost of their care.
17. The assessment will take account of the person’s income and assets. People receiving care and support at home need to retain a certain level of income to cover their living costs. The level of this allowance is set by the Government.
18. The Council therefore deducts from the person’s weekly income, the total of the person’s household costs, disability related allowance, basic income support or pension credit, and the personal living allowance. This leaves the ‘net disposable income’. The Council’s policy is that the person pays all their net disposable income as a contribution towards the cost of their care.
19. Once the financial assessment is complete, the council must give a written record of that assessment to the person. This should explain how the financial assessment has been carried out, what the charge will be and how often it will be made. The local authority should ensure that this is provided in a manner that the person can easily understand.
20. The Regulations say that if a person has refused a financial assessment or refuses to cooperate with the assessment, and the council still decides to meet their care needs, the council may consider that the person's finances exceed the financial limit for support. This means that if a person chooses not to disclose their financial information, the Council charges the full cost of the care (£17.05 per hour for home care in 2022) rather than a contribution.

Disability related expenditure

21. Where a council takes disability-related benefit into account when calculating how much a person should contribute towards the cost of their care, it should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs the council is not meeting. The Guidance sets out a list of examples but says any reasonable additional costs directly related to a person's disability should be included.

Mental capacity

22. At the time of the assessment of care and support needs, the council must establish whether the person has the capacity to take part in the assessment. Councils must presume that an adult has the capacity to make a decision until there is a reason to suspect that capacity is in some way compromised
23. If the person lacks capacity, the local authority must involve a person with lasting power of attorney (LPA) for property and financial affairs if there is one. Unless the person says otherwise, the attorney may make all decisions about the person’s property and finance even when the person still has capacity to make those decisions. Any decision has to be in the person’s best interests. The LPA must be registered with the Office of the Public Guardian before the attorney can make decisions for the person.
24. Councils must arrange an independent advocate to facilitate the involvement of a person in their assessment and preparation of their care and support plan if the person would have substantial difficulty in being fully involved otherwise and there is no appropriate individual to represent the person’s wishes.

What happened

Background

25. Mr M lives alone. He has some mild difficulties with understanding; he cannot read or write. I have seen no evidence he has been assessed as lacking the mental capacity to make decisions for himself.
26. Mr B is Mr M’s friend and provides him with support. At the time of events relating to the complaint he had power of attorney for Mr M’s property and financial affairs. He now also has power of attorney for health and welfare.
27. In 2017 a financial assessment found Mr M did not need to make any contributions to the cost of his care. Mr B says the Council said it would provide support to Mr M but nothing was put in place.
28. In April 2020, a social worker spoke to Mr B about support for Mr M during the COVID-19 lockdown. Mr B declined the offer. There is a case note that care charges were discussed with Mr B but he said Mr M would not pay for care as he had previously been told it would be free.

September to November 2020

29. Mr B was concerned that Mr M did not have any support in place. The social worker asked the finance team to assess Mr M’s finances to determine what his contribution to the cost of his care would be before a care package was put in place. The finance team asked Mr B for details of Mr M’s income, expenditure and debts. Mr B sent an outstanding electricity bill but he did not have details of other debts that Mr M had.
30. The Council calculated Mr M’s contribution using average bills for water and insurance, the standard DRE rate and the amount of pension and benefits he should be receiving. It could not take Mr M’s debts into account as it did not have details of these and any repayment plans. The financial assessment therefore found Mr M’s contribution would be £93.26 per week. In response to my second draft decision, the Council sent evidence it had written to Mr B with the outcome of its financial assessment on 14 September 2020.
31. Mr B complained in October 2020; he said the Council had not put any support in place for three years and there was no need to carry out a financial assessment as one had already been done and found that Mr M did not have to pay for the cost of his care. Mr B also complained the social worker had wrongly told Mr M he would receive free meals.
32. The Council replied on 10 November that it needed information about Mr M’s debts to take these into account. It said if it received this, the financial assessment could be completed and Mr M could decide whether he wished to receive a care package. The letter says a factsheet explaining the Council’s charging policy was attached.

December 2020 care and support plan

33. There is a care and support plan dated 4 December 2020, but I have not seen a separate care and support assessment. The plan says Mr M’s home required a deep clean, he needed prompting with personal care, and support with household duties, evening meal preparation, shopping and finances. Mr B would be providing support for meals, shopping and finances.
34. The plan says a home care agency would provide three hours of support per day, seven days a week. The plan says Mr M “would like support”, agreed to the plan and it would be reviewed in three months.
35. The full cost of the home care was £336 per week. The cost of the one-off deep clean “would be incorporated into ongoing care costs”.
36. The Council’s case records show that the social worker called Mr B on 4 December to explain the care would be starting. Mr B asked whether it would be free and the social worker said that would depend on the outcome of the financial assessment. The Council asked Agency A to provide the support and care started on 9 December 2020.

January to March 2021

37. The Council started issuing monthly invoices of £93.26 per week for the care being provided to Mr M.
38. Mr B contacted the Council. A manager replied on 17 February 2021 that there had been a financial assessment in September 2020 and she attached the factsheet explaining the charges. In response, Mr B said that “at no point had they been notified a fee would be applicable”. He said that now the deep clean had been done, Mr M would employ a private cleaner. Mr B’s email said Mr M had said to “sack” the Council as he did not wish to pay the fees.
39. The Council’s records show it discussed Mr B’s complaint. It found that Agency A was “providing good level of support”; charges had been discussed with Mr B so were applicable; more information was needed from Mr B to consider additional DREs; it would consider assessing Mr M’s capacity and making a further visit.
40. The Council replied to Mr B on 4 March. It said it had explained during the financial assessment that social care was subject to a financial contribution. Mr B and Mr M had “still insisted that Mr M required care services”, which had been delivered. It said Mr B had to act in Mr M’s best interests in terms of his finances. If Mr M had the mental capacity to make decisions regarding his care, he could cancel the care package if he wished.
41. Mr B says there was a discussion at his house which “came to the conclusion” that Mr M only needed support for two or three days a week. I have not seen any notes of this discussion or any care and support review or updated plan.

Mr B’s June 2021 complaint

42. Mr B complained that the Council was bullying Mr M and that the social worker had threatened to pass information to Mr M’s family against his wishes. I have seen evidence that the Council then spoke to Mr M.
43. The Council replied to Mr B on 1 July that it had resolved the concerns between Mr M and the social worker. Mr B remained dissatisfied. He said the Council was bombarding Mr M with questions and that the social worker had told Mr M that if anything happened to Mr B the Council would not help him. They had been told care would be free so no bills would be paid.

January to February 2022

44. There is a care and support plan dated 19 January 2022. This says that on 4 October 2021 it was agreed to reduce Mr M’s support package from 21 hours per week to 6.5 hours per week (costing £116 per week). The contents of the plan explaining Mr M’s needs are identical to the plan issued in December 2020. Mr M’s contribution would be £92.75 and the charges from October 2021 onwards were adjusted. I have not seen a care and support assessment or plan from October 2021 or an assessment from January 2022 or any further financial assessment.
45. The Council wrote to Mr B about Mr M’s outstanding debt, which was now £5,222.56. He replied that he had complained to the Ombudsman, so the Council put further debt recovery action on hold.

My findings

46. Mr B says the care should be free. This is not the case. The law says the Council can charge for social care it arranges and it is the Council’s policy to do so. It charges the full “net disposable income” it calculates.
47. A 2017 financial assessment found that Mr M did not need to pay towards the cost of his care. This does not mean the Council was not entitled to carry out a fresh financial assessment in 2020. There was therefore no fault by the Council in deciding to carry out this assessment.
48. However, I find there was fault in the September 2020 financial assessment.
49. Mr B is concerned that Mr M cannot afford to pay the contributions due to his debts, but the Council can only take those debts into account if Mr B provides the details of them. If he does not provide Mr M’s financial information, the Council is entitled to charge Mr M the full cost of his care.
50. The Council has not done this, instead it has determined Mr M’s contributions based on his expected benefits, pension and standard household costs and DRE. In response to my second draft decision, the Council said this was a pre-service financial assessment based on Mr M’s actual income to give him an approximate assessed weekly charge. However, I consider the Council should have completed a full financial assessment and that it was fault to charge Mr M an approximate assessed weekly charge. This means Mr M cannot be sure the amount he has been charged is correct.
51. Having reviewed the December 2020 care and support plan I am not satisfied it properly reflects Mr M’s needs or is proportionate in the support he required. The support plan says Mr M needed help with meal preparation, shopping and prompting with personal care, but it also says Mr B was providing much of this support. I find the plan unclear about what actual support Mr M required and why.
52. It is also unclear why the number of hours was reduced from 21 per week to 6.5 per week in October 2021, when there is no record that Mr M’s needs or circumstances had changed and I have seen no evidence of a new assessment.
53. I therefore find fault in the care and support plans of December 2020 and January 2022. This means Mr M cannot be sure he required the support set out in either plan.
54. The December 2020 plan says it will be reviewed in three months. There is no evidence of a care and support review in March 2021. This is fault
55. There is a dispute about whether Mr M agreed to the care and support plan. The December 2020 plan says Mr M “would like support” and the agreed-to-plan box is marked “yes”. In February 2021 Mr B told the Council Mr M no longer wanted support from the Council, but the Council did not review the support or act to cancel the care in line with Mr M’s wishes. This was fault.
56. There is also evidence that the Council considered it may be necessary to assess Mr M’s capacity, but then did not. In response to my second draft decision, the Council said it had made a referral for an independent advocate on 6 July 2021 but there was no further action regarding allocation of an advocate.
57. In response to my first draft decision, Mr B said that the Council was wrong to send invoices to Mr M and that it should have agreed the care plan and charges with him as he has power of attorney. The Guidance says councils should liaise with attorneys if the service user lacks capacity to make decisions about their care or finances. As no capacity assessment was done, the Council had to assume Mr M had capacity. It was therefore not fault for it to rely on Mr M’s views or send the invoices to him.
58. However, I find that fault by the Council has caused uncertainty about what care Mr M needed, whether he had capacity to decide on his care or the charges, whether he agreed to it and what he should be charged for it. This is injustice to Mr M.
59. To remedy that injustice in my first draft decision statement I recommended the Council re-assess Mr M’s care and support needs and complete the financial assessment. It would then charge Mr M for the care and support he required as determined by the new care and support assessment and new financial assessment, backdated to December 2020.
60. In response Mr B said Mr M no longer required support from the Council as he was now paying for private support and there was therefore no need to carry out a care and support assessment or financial assessment. This means any new care and support assessment now is likely to determine he no longer wants care.

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Agreed action

61. Within a month of my final decision, the Council has agreed to waive Mr M’s financial contribution since December 2020.

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Final decision

62. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Parts of the complaint that I did not investigate

63. I have not investigated what happened between 2017 and August 2020. This is because the law says we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) I consider it would have been reasonable for Mr B to complain about the lack of care and support at the time.

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Investigator's decision on behalf of the Ombudsman