Summary: The Council did not compel Mr X to accept care or tell him there was a compulsory care order. The Council recognises it could have taken a decision sooner about Mr X’s capacity to make his own decisions about his care and offers to credit some months of care to his current debt. It also recognises the distress caused to him by the delay in responding to his complaint and offers £250 to him.

The complaint

1. Mr X (as I shall call him) complains the Council forced him to accept a care package and as a consequence he accrued a large debt.

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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 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

4. I considered the information provided by Mr X and by the Council. I spoke to Mr X. Both Mr X and the Council commented on a draft of this statement before I reached a final decision.

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What I found

Relevant law and guidance

5. 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)
6. 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. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.
7. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. The Care and Support Statutory Guidance sets out a list of examples of such expenditure. It says any reasonable additional costs directly related to a person's disability should be included.
8. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently.

What happened

9. Mr X, who has several physical health problems including insulin-dependent diabetes, lives alone and has received care from Council-commissioned care providers since 2013. He had major heart surgery in early 2020.
10. The Council says Mr X has intermittently asked for his care to stop because he said he could not afford his contributions, then decided he needed it to continue. The Council’s case recording shows Mr X often refused access to carers, occasionally going on hunger strike to make his point that he felt he was being forced to accept care against his will.
11. Mr X’s care package included 4 care calls a day to help with personal hygiene, meal preparation, shopping and cleaning. The Council says during 2020 and 2021 the aim of the care package was to ensure Mr X’s safety, reduce the risk of hospital readmission and promote his independence. There were concerns about the way Mr X adjusted his insulin intake when he went on hunger strike.
12. In October 2020, in response to Mr X’s repeated concerns about the level of his contributions towards the cost of his care package, the Council arranged for the financial assessment team manager and a social worker to visit Mr X at home. They confirmed that the assessment was correct. The Council says ‘(Mr X’s) response was to take an overdose of his medication and stab himself in the leg with a kitchen knife during the visit, requiring an ambulance to be called to take him to hospital.’ The social worker raised a safeguarding alert.
13. Mr X continued to receive a care package during 2021. In August 2021 at a review of his care he said he believed he was receiving the correct level of benefits but that he could not afford his weekly contribution. He said his current level of support was adequate. The visit report continues, “(Mr X) acknowledges that he requires the care and support but wishes the support to becancelled as he said he cannot afford to pay the care contributions. I asked what would happen if the care was stopped and he acknowledged that he would probably die but said that continuing to have money worries is having a massive impact on his health.” The social worker gave Mr X information about financial support and contacted the financial assessment team to see if any more of his expenses could be regarded as disability related.

14. The Council says Mr X regularly said he wanted to spend his money on his lifestyle choices not his care package; it goes on, “Examples of such choices were recorded in the case notes as cannabis and cable television and he was advised they could not be taken into consideration in determining any offsetting of his financial contribution. His social care needs had been assessed and reviewed to determine he had eligible needs.”
15. At the start of December 2021, a social work team manager and an Occupational Therapy team manager visited Mr X again to discuss his continued concerns. The Council says they concluded Mr X had all the equipment in place that he needed, could arrange for a friend to take him out shopping and had the capacity to make his own decisions about continuing to receive care. The visit record notes, “we agreed that (Mr X) is independent in caring for himself, his health and abilities have improved and alongside OT adaptations and equipment, he manages independently as he showed us. He can ask his friends to do his cleaning if needed. He also has a motobility van and can do his shopping and went out last night to buy sausage and chips from local takeaway….He said he did not want to be financially assessed to look at his contribution from the debt from home care previously supplied. (Mr X) did not agree that he should pay for this service. Agreed that (Mr X) did not need a service and we would close the home care service being provided. I agreed to phone him in January to verify if he was managing independently or needed a service.”
16. In January 2022 a CAB adviser wrote to the Council with Mr X’s complaint. She said he had told her he had been informed repeatedly there was a compulsory care order which could not be stopped, and as a result he had built up a debt of several thousand pounds
17. The Council did not respond. Mr X telephoned officers in April and May to find out what was happening. He complained again in writing on 30 May.
18. The Council responded to Mr X. It apologised for failing to respond to the complaint on his behalf from the CAB sooner. It said there had been times when the level of service from the care provider (late or missed calls) had been unacceptable and it apologised. It said there was no such thing as a compulsory care order and no record that any officer from the Council had said that to him. It said the financial assessment had been explained to him several times. It pointed out that although there had been times when he had requested the service was stopped, he then acknowledged he needed it and asked for it to restart.
19. The Council noted however there had been a delay from July 2021, when Mr X again asked for the care package to stop, until December when a visit had concluded he had capacity to make his own decisions about his care. The Council apologised for that delay and offered to recommend a credit on his account for that amount of care.
20. Mr X complained to the Ombudsman. He said he had been forced to accept care he no longer wanted or needed even when he refused to let carers into his property.
21. The Council says, “The Council believed (Mr X) required his package of care to meet his assessed social care needs at the time it was implemented. At one point, (Mr X) was admitted to hospital having turned his carers away over the course of several weeks. The Council also believed that the determination of the amount of his financial contribution had followed due process and been fairly applied. There were a number of case notes that confirmed (Mr X) at times of clear thinking agreed he needed the support package and was prepared to pay for it. At other times, he said he wanted it but did not want to pay for it. Furthermore, at other times he said he did not want it as he could not afford it.”
22. The Council acknowledges however that it could have reached a view sooner about Mr X’s mental capacity to make his own decision to stop his care. For that reason, it says “If (Mr X) confirms his agreement, the debt (now about £3,200) could be referred to the debt management group with a recommendation that 6 months’ worth of care be credited to his account”.

Analysis

23. There is no evidence the Council told Mr X he could not stop his care although there were necessarily discussions with him about the wisdom of doing so. There is no evidence Council officers told him there was a “compulsory care order”.
24. There were some instances over the course of a few years when the commissioned care provider did not attend or attended late. The Council has apologised for those failings.
25. The Council accepts it could have responded sooner in 2021 when Mr X indicated in July he wanted his care to cease. At the visit in December 2021, it was recognised he had equipment in place to manage and could arrange friends’ support for shopping, and had capacity to decide to terminate the care package.
26. Finally, the Council delayed some months in responding to Mr X’s complaint which it accepts had got lost in other correspondence. That added to his sense of frustration.

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Agreed action

27. Within one month of my final decision, the Council will offer Mr X £250 in recognition of the frustration caused to him by the delay in dealing with his complaint.
28. Within one month of my final decision and with Mr X’s agreement, the Council will recognise the effect of its delay in withdrawing care once Mr X had relevant equipment and support in place by its suggestion of credit of six months’ worth of care costs.
29. The Council will provide us with evidence it has complied with the above actions.

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Final decision

30. I have completed this investigation on the basis there was fault by the Council which caused injustice to Mr X; that injustice will be remedied by completion of the recommendations above.

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Investigator's decision on behalf of the Ombudsman