Summary: Mr Y, complained on behalf of his father Mr X, about the Council’s failure to provide information that long term care would be chargeable. We have not found fault with the Council in how it informed Mr X and his family about care charges. There was fault for sending an invoice in error after the service ended. The Council resolved this when challenged; this limited the injustice to Mr X.

The complaint

1. Mr Y complained, on behalf of his father Mr X, the Council did not properly notify him and his family that the care Mr X would be receiving was chargeable, before the service started. He said there were also data protection breaches in the Council’s handling of Mr X’s complaint, and in the way it obtained and sent information.
2. After receiving an invoice and a further two since the service ended, Mr X was caused distress and frustration. Mr Y wanted the Council to waive all charges.

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What I have and have not investigated

3. I have not investigated the part of Mr Y’s complaint about potential data protection breaches. This is because the Information Commissioner’s Office is better placed to investigate these types of concerns. Mr Y can report these directly to it should he wish to do so.

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The Ombudsman’s role and powers

4. 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)
5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), 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 discussed the complaint with Mr Y, Mr X’s son, who is dealing with the complaint on his behalf, and considered his views.
8. I made enquiries with the Council and considered its written responses and information it provided.
9. Mr Y and the Council 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

Law and policy

Financial assessment

10. 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 places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the 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)
11. Where a council has decided to charge for care, 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.

Assessment of an individual’s charges

12. The capital limits, specified in regulations issued under the Care Act 2014, set the levels of capital (excluding any capital that has been disregarded) that a person can have while qualifying for financial support from their local authority. The lower capital limit is £14,250 and upper capital limit is £23,250.
13. A person with assets above the upper capital limit is responsible for the full cost of their care in a care home. A person with assets between the capital limits will pay what they can afford from their income, plus a means-tested contribution from their assets (calculated as £1 per week for every £250 of capital between the capital limits). A person with assets below the lower capital limit will pay only what they can afford from their income.

What happened

14. The Council provided me with Mr X’s case records and associated documents. I have summarised below the key events from these.
15. Mr X, Mr Y’s father, has dementia. In June 2021, following discharge from a brief period in hospital, a short term reablement package was put in place to support Mr X at home. This was a once daily, morning visit to help with personal care tasks. This intermediate care service is free of charge for up to six weeks.
16. On 1 July 2021, Mr X was reviewed at home by the Council’s Response and Rehabilitation Team (RRT) with Mr Y’s brother present. The contact log stated Mr Y’s brother had said Mr X’s savings were below the threshold and he was provided with a financial assessment form. In a follow up phone call with Mr Y’s sister, she agreed ongoing support would be needed.
17. On 15 July 2021, a social care assessor (SCA) visited Mr X to assess him and enable a timely transfer from intermediate care to long term care. Following this, it was assessed that Mr X would continue to need the package of care to meet his eligible needs.
18. Case records state the SCA explained the charging policy to Mr X at this visit. He asked that his daughter was spoken to about finances. Mr X verbally advised he was under the capital threshold of £23,250.
19. The notes also state the SCA spoke to Mr Y’s sister on the phone after the assessment visit:

“advised re charging policy and switch to long term care once a provider had been sourced. Advised [Mr Y’s sister] that charging would begin from the first day that long term care was implemented. A finance form has already been issued but [Mr Y’s sister] requesting I send a further form to her brother [Mr Y’s brother] who deals with her father’s finances. [Mr Y’s sister] in agreement from [sic] long term care plan”.

20. In an email dated 15 July 2021, the SCA sent Mr Y’s brother a financial assessment form and a “Paying for Care” booklet. This explained how charging for care worked.
21. On 17 July 2021, the long term care package for Mr X started.
22. In September 2021, a SCA conducted a review of Mr X’s care and support plan, with Mr Y’s sister present. It was noted Mr X was happy with the current package of care as it met his needs.
23. In a letter dated 22 September 2021, the Council wrote to Mr X that he was in the receipt of services “which are not free and are subject to a means test to determine if a person can contribute towards their care”. It asked for the financial assessment form to be completed to determine if he needed to pay and if so, how much. Otherwise, it would assume Mr X had over the threshold in savings and would pay the full cost.
24. In an email dated 7 October 2021, the Council asked Mr Y’s sister to complete the financial assessment form. It also sent a charging policy document to explain the methods used to calculate Mr X’s contribution towards his home care. It also said, “Please in the meantime can you provide your father’s National Insurance (NI) number which we would use to find his Department of Work and Pensions (DWP) income and put in a provisional assessment”.
25. In an email dated 8 October 2021, the Council advised Mr Y’s sister its provisional financial assessment of the amount Mr X would pay per week towards the cost of his care, from the date when the services started. It sent a breakdown of the calculation. Mr Y’s sister clarified the amount in a follow up email.
26. On 11 October 2021, Mr X’s care visits for the week were cancelled by the family. That day’s visit was still charged due to the lack of notice.
27. On 18 October 2021, Mr Y’s sister contacted the care agency to say they no longer wished to have carers for Mr X.
28. On 19 October 2021, the SCA spoke to Mr Y on the phone. He said they had cancelled the care package and he would be looking after Mr X temporarily. He would be in contact with a decision to resume or cancel completely. The service was terminated on 22 October 2021.
29. On 10 November 2021, the SCA spoke to Mr Y to end the service completely as the family had agreed to carry out the duty of looking after Mr X.
30. In December 2021, Mr Y complained to the Council stating:
1. it had obtained Mr X’s NI number unethically;
2. it had been interacting with his sister who was only authorised for medical related issues, rather than himself, who dealt with Mr X’s financial and other administrative affairs;
3. it had sent an invoice of £823.73 to Mr X for his care in October, three months after the service started. There had been no prior notification that a bill would be due; and
4. a further invoice was sent for a visit that never happened.
31. In January 2022, the Council responded with a timeline of key events from its case records, outlined in the narrative above. In response to Mr Y’s complaint:
1. It said records showed the need to pay for care had been discussed with Mr X and other members of the family on different occasions. The financial form had been provided more than once with repeated requests for completion on different occasions, including before the long-term care started. In the absence of a completed form, it had asked for Mr X’s NI number and explained why. It was to lawfully access finance information through the DWP to make a provisional financial assessment calculation based on that. It said this was done to avoid charging Mr X for the full cost of his care, as it could have done as stated in its policy. Not upheld.
2. The Council had contacted the Official Public Guardian (OPG) to confirm if anyone acted for Mr X on an official basis under a Lasting Power of Attorney (LPA). The OPG confirmed there was nothing registered with them. One of the purposes of a financial assessment form was to determine who was acting for a service user and in what capacity. This had not been completed and so it had liaised with Mr Y’s sister who they had spoken to previously about Mr X. Not upheld.
3. It had provided an explanation and information about the expected contribution Mr X would make before care started. Once it made its provisional assessment without the form being completed, it had sent the information to Mr X. If it had not done this, the other option would have been to invoice for the full amount. Not upheld.
4. It apologised for the further invoice and would arrange for it to be cancelled. Upheld.
32. In February 2022, Mr Y responded disagreeing with the Council’s reply and disputed the accuracy of the Council’s records. He said some had been fabricated. He added that another invoice been sent to Mr X in January which was unacceptable.
33. In August 2022, Mr Y complained to the Ombudsman.

Council’s response to my enquiries

34. The Council sent me Mr X’s assessment and support plan dated 15 July 2021. It said Mr X did not lack capacity to make decisions about his care. The plan included a section on “Services and Costs” which outlined details of the type of care, frequency, duration, and the amount it cost.
35. The assessment noted there was a risk of carer strain for Mr Y’s sister. Mr X lived with her, and she helped him with tasks and medical administration. The support plan with carers assisting Mr X’s morning routine would also reduce pressure on her. Mr Y’s sister was listed as a main point of contact for Mr X. Mr Y was not.
36. I have reviewed the Council’s “Adult Social Care Contributions Policy 2021/22”:

“Section 2.6 - When there is a delay in completing a financial assessment resulting from the service user failing to provide complete information, the Council may seek to recover back-dated contributions from the start date of the service. Although every effort will be made by the Council to undertake a financial assessment using available information to provide an accurate financial assessment.

Section 2.7 - If a service user declines or refuses a financial assessment they may be required to pay for the full cost of their service from the start of the service.

Section 2.8 - Following the financial assessment, the Council will endeavour to notify the service user of the outcome prior to their agreement to a Care and Support Plan.

Section 2.10 - Contributions are normally payable from the date care services commence.”

37. The Council confirmed the further ‘invoice’ sent to Mr X in January 2022 was a credit note for £138.65. The system had generated this so the invoicing was adjusted to reflect the correct billing period for the period of the care service.

Analysis

38. The Ombudsman makes impartial decisions based on evidence. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
39. Mr Y disputed much of what the Council said happened in its records. It is our expectation that councils keep accurate case records for transparency and accountability. We rely on these unless it is proven otherwise. I noted Mr Y was not involved in the arrangement of the care for Mr X with the Council until he ended the services in October.
40. Based on the evidence, I am satisfied it was more probable than not that Mr X and other members were sufficiently advised charges would be due for the long term care. This was before the service started. There was opportunity for the family to ask more questions or return the completed form before agreeing for the care to start if they wanted to know the exact amount to pay. I do not find fault with the Council.
41. It may be the case that Mr Y had, on an informal basis, agreed within the family unit that he be responsible for Mr X’s financial decisions. This was not through a legal appointment as Power of Attorney. The financial form had not been completed which would confirm to the Council who was acting for Mr X financially. It was not fault for the Council to speak to Mr Y’s sister who lived with Mr X and helped with some care tasks.
42. There are no set timescales in law and guidance to complete a financial assessment. In some circumstances, councils may put care in place before a financial assessment is complete. The Council had already discussed the likely cost implications with Mr Y’s sister, who agreed for long term care for Mr X. It was unable to confirm the exact figure for contributions at that point until a financial form had been completed. I do not find fault with the Council for acting on this basis.
43. Evidence shows the Council explained the need for Mr X’s NI number. It was then able to then do a financial assessment by accessing available data it could, as per its policy. It reasonably was not able to issue an invoice for the cost of care until this had happened. I do not find fault.
44. The Council apologised for the invoice it sent, charging for care visits after the service ended. This was cancelled. This was fault. I recognise Mr X was distressed when receiving this, but the Council remedied any injustice by apologising and cancelling the invoice. The additional invoice in January 2022 was in fact a credit note, as confirmed by the Council. I do not find further fault.
45. Mr Y said the Council should waive the care costs as the family were not aware the service was chargeable. I do not agree this is reasonable in light of the evidence that says otherwise. Mr X received the care and was satisfied with it. It is reasonable for Mr X to pay the charges he is eligible to pay after the financial assessment.
46. Mr Y said Mr X would not have agreed to the care if they had been aware of the cost. I note this view, but on the balance of probabilities there is written evidence that they were informed that they would need to pay the cost of the care. There is no written evidence the Council told them it would be free. So, I do consider that in accepting the visits from the carers they accepted a service which they had been informed was chargeable.
47. In response to my draft decision, Mr Y raised concerns about the exact amount the Council has charged. He provided documentation to dispute some days that care visits did not happen between July and September 2021. This was not part of the main complaint, and I will not consider it further now. I would expect the Council to confirm the outstanding amount and discuss any disagreements about this figure with the family, and then put an affordable repayment plan in place.

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Final decision

48. I have not found fault with the way the Council informed Mr X and his family about his care charges. I am satisfied the Council remedied any injustice caused by the fault in invoicing for care after the service ended. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman