Summary: Mrs B says the Council misled her about the charges for her care package when setting up a direct payment and refused to communicate with her representative. The evidence shows both the assessed charge and additional top up fee were discussed with Mrs B and her family although the Council failed to discuss the option of a cheaper care package. There was also some confusion around what information could be shared with Miss C. An apology, reminder to officers and training or guidance on data protection is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, is represented by her daughter whom I will refer to as Miss C. Miss C complained the Council:
• when arranging a direct payments package, failed to explain Mrs B would have to financially contribute to the care package as well as covering the difference in hourly rates to reflect the amount the Council would not fund; and
• refused to communicate with her.
2. Miss C says the Council’s actions have put Mrs B in a serious financial position and has caused significant stress to her and her family.

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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. If we are satisfied with a Council’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

6. As part of the investigation, I have:
• considered the complaint and Miss C's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mrs B, Miss C and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

8. The Care and Support Statutory Guidance (the guidance), says local authorities must provide information and advice on various matters when carrying out their care and support functions, including:
• the choice of types of care and support, and the choice of care providers available in the local authority's area. Where possible this should include the likely costs to the person of the care and support services available to them; and
• how to access independent financial advice on matters relating to care and support - about the extent of their personal responsibilities to pay for care and support, their rights to statutory financial and other support, locally and nationally, so that they understand what care and support they are entitled to from the local authority or other statutory providers. Including what information and advice people may wish to consider when making financial decisions about care so that they can make best use of their financial resources and are able to plan for their personal costs of care whether immediately or in the future.
9. The guidance says the local authority must provide information to help people understand what they may have to pay, when and why and how it relates to people’s individual circumstances. This must include the charging framework for care and support, how contributions are calculated and the means tested support available; top-ups and how care and support choices may affect costs. In the case of top-ups, the local authority should ensure that someone is willing and able to pay for them.
10. The guidance says where a local authority arranges care and support to meet a person’s needs, it may charge the adult, except where the local authority is required to arrange care and support free of charge.
11. The guidance says there will be cases where a person or a third party on their behalf is making an additional payment (or a ‘top-up’) in order to be able to secure the care and support of their choice, where this costs more than the local authority would pay for such a type of care. In these cases, the additional payment does not form part of the personal budget since the budget must reflect the costs to the local authority of meeting the needs. However, the local authority should consider how best to present this information to the individual, so that the total amount of charges paid is clear, and the link to the personal budget amount is understood.

What happened

12. In January 2020 Mrs B began receiving a package of homecare, arranged by the Council. Mrs B paid a financial contribution towards the cost of that care package. Initially that was £56.07 per week. It rose to £65.15 per week.
13. As the family had concerns about the care provided by the initial care agency Mrs B’s family contacted the Council in September 2020. The Council discussed the possibility of an alternative care agency and the option of a cash individual budget. The family told the Council their preferred option was a care provider they had identified.
14. An officer from the Council’s direct payments team contacted a family member to discuss the cash individual budget process. The officer explained the maximum rate the Council would pay was £16.41 per hour. The family told the Council the care provider they had identified charged £22.95 per hour on weekdays and £24.95 per hour on weekends. The Council’s officer told the family Mrs B would need to pay the a top up to cover the difference in hourly rates and the family said they were happy to pay that. The Council subsequently confirmed this was an additional £149.34 per week.
15. An officer visited Mrs B to complete the paperwork on 18 November 2020. Miss C was present at that visit. Mrs B signed the budget agreement and a note of the visit recorded the family had agreed to cover the weekly top up to the hourly costs of care and the assessed charges.
16. Mrs B’s granddaughter contacted the Council in January 2021 as Mrs B had received a bill for £65.15 per week for her care package. Mrs B’s granddaughter said she understood Mrs B only had to pay £149.34 per week. The Council clarified that £65.15 was the contribution towards Mrs B’s care and £149.34 was a top up due to the maximum amount the Council would pay per hour for the care agency and therefore both charges needed to be paid. The Council explained if the family did not want to pay both charges they could try and negotiate with the agency to bring the hourly rate down, pick another agency which charged less than £16.41 per hour or come back to the Council’s commissioned agency.
17. Miss C put in a complaint. When responding to that complaint the Council explained its officer had told the family at the visit in November 2020 that as the care provider chosen charged more than the maximum the Council would pay Mrs B would need to pay of a top up and that in addition to that she would be subject to a financial assessment to decide how much contribution she was eligible to pay towards the cost of her care. The Council was therefore satisfied it had properly advised the family.
18. In April 2021 Mrs B’s granddaughter asked the Council to complete a new financial assessment. When completing that assessment the Council discovered Mrs B had a private pension which she had not told the Council about. That increased Mrs B’s contributions from £70.85 to £126.83 per week. Since then Miss C has provided the Council with details of disability related expenditure and the charge has reduced.
19. Miss C has continued to raise concerns with the Council about the charges Mrs B is facing. Miss C has made clear to the Council she felt the family were misled and that this would likely mean Mrs B would have to be placed in a care home as she could not afford the care at home. The Council explained Mrs B had not been assessed as requiring full-time care or admittance to a care home. The Council has offered to source an alternative care provider within its budget. As part of that the Council suggested an alternative care provider. Miss C has declined that option because she does not consider the care provider is satisfactory and is concerned about the possibility of further safeguarding issues. Miss C also made clear Mrs B was happy with the care provider in place and she did not want to disrupt that.
20. In November 2021 Mrs C asked the Council for copies of correspondence it had recently sent to Mrs B. The Council said it could not share that information with Miss C as she was not Mrs B’s power of attorney and was not named on the invoices issued. Miss C provided a letter of authority from Mrs B so she could access Mrs B’s records. Although the officer initially said Miss C could not have the information it has now provided the information requested as Mrs B had provided signed authority for Miss C to see her paperwork..
21. The Council remains willing to work with the family to identify a cheaper care provider.

Analysis

22. Miss C says the Council, when arranging a direct payments package, failed to explain Mrs B would have to financially contribute towards the care package as well as covering the difference in hourly rates charged by the care agency to reflect the amount the Council would not fund. I am satisfied the issue here has arisen because when Mrs B’s family decided to change the care provider arranged by the Council in 2020 it selected an agency whose hourly rates exceed those the Council will pay. Up until that point I am satisfied Mrs B had been receiving care from a care provider arranged by the Council. That care provider charged lower hourly rates than the care provider the family subsequently chose and Mrs B had to contribute £65.15 per week towards the original care package. The issue is therefore whether the Council properly advised the family about the charges Mrs B would face if she moved to the new care provider.
23. Miss C says the Council only told the family it would have to cover the top up to reflect the increased hourly rate for the new care agency which was more than the hourly rate the Council would pay. The documentary evidence though includes a note recorded by the officer that visited Mrs B and her family to go through the proposed change to a direct payment in November 2020. The note from that visit records the officer told the family the weekly top up to hourly costs of care and assessed charges would need to be paid by Mrs B and it is recorded that the family agreed to that. In addition to that, the personal budget agreement signed by Mrs B states she may be required to pay a contribution towards the cost of her care. The personal budget agreement separately records that Mrs B or her family can choose to personally top up her personal budget to pay for additional choice.
24. As the record from the visit on 18 November 2020 refers both to the top up and the assessed charge and as the personal budget agreement signed by Mrs B also refers to those two charges separately I could not say the Council misled the family about the charge they would face. In addition to that, I am satisfied Miss C knew Mrs B was already contributing £65.15 towards the cost of a considerably cheaper care package before she changed to the new care provider. I consider that should have put Mrs B on notice, irrespective of the information the Council provided at the visit on 18 November 2020 and in the personal budget agreement, that the charges were likely to be more than just topping up the hourly rate the care provider charged. I would, however, have expected the Council to discuss with the family the option of choosing a different care provider which would fall within the budget the Council had set. Failure to do that is fault.
25. In reaching that view I appreciate the Council says it did not consider it necessary to discuss alternative care providers as the family had chosen the care provider. Given the financial implications of choosing that care provider though I would have expected the Council to discuss the option of a cheaper service so the family could make an informed decision. I could not say though if the Council had done that the family would have chosen a cheaper service. I say that because when Miss C complained to the Council about the charges in 2021 the Council suggested an alternative care provider which fell within the budget the Council had allocated and would not have required a top up. The evidence I have seen satisfies me Miss C declined that option because she did not consider the care provider was a satisfactory one and was concerned about safeguarding incidents occurring again, as they had with the original care provider. In those circumstances I do not consider it likely, on the balance of probability, Mrs B would have chosen the cheaper care provider in 2020 had the Council discussed that option with her. In those circumstances I consider an apology satisfactory remedy for this part of the complaint. I also recommended the Council remind officers completing care assessments of the need to discuss the option of the Council looking for an alternative care provider that is within budget when a service user chooses a more expensive service so they can make an informed decision. The Council has agreed to my recommendation.
26. Miss C says the Council refused to communicate with her. Having considered the documentary evidence I note Miss C has had extensive correspondence with the Council since direct payments were put into place. Until November 2021 I have seen no evidence of the Council refusing to communicate with Miss C. However, there were occasions before November 2021 when the Council explained it could not give Miss C information about Mrs B’s case without authorisation. I cannot criticise the Council for doing that as under data protection regulations the Council, as with the Ombudsman, can only communicate with a representative where it has authorisation from the service user. I appreciate though that this would have been confusing for Miss C given some officers had previously responded to her concerns and provided information without authorisation from Mrs B. Nevertheless, refusing to provide information without authorisation from the person whose records are being requested is not fault.
27. I am concerned though that despite Mrs B providing the Council with a letter of authority in November 2021, giving Miss C permission to see her documentation, a Council officer told her it could not do that as she did not have power of attorney and was not the addressee for the invoice. Given the letter Mrs B had provided refusal to share information with Miss C in November 2021 is fault. I consider an apology and data protection training or further guidance on data protection for officers about when they can share information with representatives is satisfactory remedy. The Council has agreed to my recommendations.

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Agreed action

28. Within one month of my decision the Council should apologise to Mrs B and Miss C for failing to discuss cheaper care providers with them in 2020 and to Miss C for initially refusing to provide her with information after she provided a letter of authorisation from Mrs B in 2021.
29. Within two months of my decision the Council should:
• send a reminder to officers carrying out Care Act assessments to ensure they are aware of the need to offer the option of the Council seeking an alternative care provider which would not require a top up when the service user or their family express a desire to choose a more expensive provider; and
• provide training to officers in social care/direct payments or send them a guidance note on the implications data protection has for their work, particularly in relation to when it is appropriate to disclose information to a family member.

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Final decision

30. I have completed my investigation and found fault by the Council in part of the complaint which caused Mrs B and Miss C an injustice. The action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman