Summary: Mrs X complained the Council charged her mother, Mrs Y, for care without providing information and without getting her consent. Mrs X says this caused the family distress when they received the bill. There was fault in the way the Council did not provide information about charging for Mrs Y’s care. Mrs X and Mrs Y suffered distress when they received the bill. The Council should apologise, refund Mrs Y’s money and issue guidance to its staff about providing information about charging.

The complaint

1. Mrs X complained the Council charged her mother, Mrs Y, for care without providing information and without getting her consent. Mrs X says this caused the family distress when they received the bill.

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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. 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

4. I read Mrs X’s complaint and spoke to her about it on the phone.
5. I considered information provided by Mrs X and the Council.
6. Mrs X 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

Background information

7. 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)
8. 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. Councils have no power to assess couples according to their joint financial resources. A Council must treat each person individually. A Council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.
9. Sections 9 and 10 of the Care Act 2014 require Councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. 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.
10. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
11. Regulations require intermediate care and reablement to be provided without charge for up to six weeks. This is for all adults, whether or not they have eligible needs for ongoing care and support. Councils may charge where services are provided beyond the first six weeks but should consider continuing providing them without charge because of the preventive benefits. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)
12. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
13. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
14. There are two types of LPA.

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

15. An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.
16. Mrs X holds LPA for Mrs Y’s finances.
17. 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.

What happened

18. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
19. Mrs Y was admitted to hospital and discharged in June 2021. The health service provided reablement support at home until August 2021. The outcome report noted Mrs Y had regained her former independence.
20. Mrs Y was readmitted to hospital following another fall in August 2021.
21. In late August 2021 she was discharged to a care home for assessment.
22. In September Mrs Y was discharged to her home with a package of reablement care. The care supported Mrs Y to build up her independence to live at home. This care was provided free of charge.
23. The reablement care was due to stop at the start of November 2021. Mrs X stated she was told this would continue as the Council was having difficulty sourcing support workers. The reablement support continued as Mrs Y still had care and support needs. The Council started to charge Mrs Y from this date.
24. The Council completed a further assessment in November 2021. This assessment identified Mrs Y had ongoing care needs and confirmed Mrs Y had support from her family. Mrs Y had over the upper threshold of funds so the Council stated she would be required to self-fund her care. The Council apologised for the delays completing the assessment and explained the care crisis and it was having difficulty sourcing support for people. Mrs Y’s family agreed it would support her and then consider privately sourcing care.
25. The reablement service completed its work at the end of November 2021. It confirmed Mrs Y had regained her independence and staff were not needed to continue. Mrs Y’s family agreed to provide all care she needed. Mrs X was moving into Mrs Y’s home to support her.
26. Mrs X received a bill in January 2022 for Mrs Y’s care from the start of November 2021 until the start of December 2021. Mrs X claimed she was told as the Council couldn’t source any care the reablement care would continue. She said the reablement worker told her not to worry and the care wouldn’t stop until Mrs Y had the right care in place. Mrs X said as the reablement care was free for six weeks and she was told it would continue, she assumed it would remain free of charge. Mrs X said she had not received any information about the cost of this care, the first she knew about the cost was when she received the invoice.
27. Mrs X complained to the Council in March 2022. She complained she did not have any information about the cost of care, no contract and she was told the free care would continue.
28. The Council responded to the complaint at the end of March 2022. It stated the free care ended at the start of November 2021, so it was right to charge until the care stopped in December 2021. The Council agreed there was no contract and as Mrs Y had over the upper capital limit, it did not need to complete a financial assessment.
29. Mrs X requested the Council escalate her complaint to stage two as she did not believe she should pay for the care without any information or agreement of the charges.
30. The Council provided its stage two response in April 2021. The Council stated its case note of the November 2019 assessment was enough evidence to show Mrs X was aware of the charging policy and the payment was still due.
31. Mrs X reported she paid the invoice after the Council threatened to take her to court.
32. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to refund the money she paid.
33. In response to my enquiries the Council confirmed it did not have a contract for care and stated Mrs X had the information about charging.

My findings

34. The Council stated it did not need to do any financial assessment as Mrs Y had over the upper capital limit. The Council does have to complete financial assessments and provide the person with a written record. It has provided two financial assessments for 2021/2022 and 2022/2023 but has not evidenced when these were completed, only valid from dates. It also has not evidenced it provided Mrs X or Mrs Y with written evidence of the assessments. As the Council stage one response from March 2022 stated it did not need to complete a financial assessment, it is reasonable to assume both financial assessments were completed after March 2022.
35. The Council does not have a contract for the cost of care Mrs Y was charged for. The Council has not evidenced it informed Mrs X or Mrs Y how much she would pay or explained the financial implications of the package of care. Mrs X stated she was told the reablement care would continue until a package of care could be found as the Council could not source support. It is reasonable for her to conclude if the free service was extended, it would remain free, without information about the charges.
36. Mrs X has moved in to provide the support Mrs Y needs. Mrs X maintained if the Council fully informed her of the costs, she would have moved in earlier. On the balance of probability Mrs X would have moved in sooner if they had been informed of the charges.
37. The Council has not evidenced it provided information about Mrs Y’s cost of care. The first time Mrs X knew the cost of care was when she received the invoice. This is fault and Mrs X and Mrs Y suffered distress when she received this invoice.

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Agreed action

38. To remedy the outstanding injustice caused to Mrs X and Mrs Y by the fault I have identified, the Council should take the following action within 4 weeks of my final decision:
• Apologise to Mrs X and Mrs Y for not providing the information and the distress this caused.
• Refund the full amount already paid for care from November 2021 to December 2021.
• Issue guidance to relevant staff on the importance of providing information about financial implications before an individual becomes liable for costs.
39. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

40. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X and Mrs Y.

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Investigator's decision on behalf of the Ombudsman