Summary: Mr Y complained the Council did not ensure his mother understood her care package was chargeable and that it did not give her the opportunity to stop visits until she knew of the exact costs involved. We found fault because the Council was not clear enough in its explanation to Mr Y’s mother and did not meet guidance in relation to the financial assessment process. To remedy the injustice caused by these faults, the Council has agreed to apologise, cancel the outstanding care invoice and review some of its processes.

The complaint

1. Mr Y complains the Council did not ensure his mother, Mrs X, understood her ongoing care was chargeable. He also complains the Council did not give Mrs X the chance to defer chargeable visits until she knew of the costs involved.
2. Mr Y says the resulting invoice for care has affected his mother’s physical and mental health and she cannot pay it. He also says his own mental health has been affected due to the worry involved.

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What I have not investigated

3. I have not investigated whether the Council could consider certain personal costs as part of the financial assessment (FA) as the costs for these items cannot be disregarded under the guidelines.

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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. 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.
7. 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

8. I have considered all the information Mrs X’s representative, Mr Y, provided and discussed this complaint with him. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Mrs X, Mr Y and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Relevant policy and guidance

Reablement

10. Councils have a duty to prevent, reduce or delay needs for care and support for all adults (Care Act 2014 section 2).
11. Providing a reablement service is one of the ways a council can fulfil this duty. Reablement helps people learn to manage again after, for example, a period of illness. It may be provided in a person’s own home by a team of social care workers.
12. If agreed, a reablement care support package normally lasts for six weeks and is free of charge. The Council can use its discretion to provide the free service for longer than this period. After this time, any arranged care becomes chargeable. (The Care and Support (Charging and Assessment of Resources) Regulations 2014 regulation 3 (2) (b)).

Providing information

13. Section 4 of the Care Act 2014 (the Act) says the Council must have a service for providing people in its area with information and advice about adult care services. It says the information and advice provided must be accessible. The information must also be:
• enough for people to identify how their finances could be affected by social care; and
• enough for people to make plans for meeting care needs.
14. The Government has issued ‘Care and Support Statutory Guidance’ (CSSG) on using the Act. CSSG says that councils should:
• ensure information supplied is clear. This means it is understood and able to be acted upon by the people receiving it;
• take all reasonable efforts to provide comprehensive information and advice at an early stage;
• provide an information and advice service which is more than just leaflets and web-based materials; and
• signpost people to independent financial information and advice.
15. CSSG also says councils 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”;
• that includes “the charging framework for care and support, how contributions are calculated … and how care and support choices may affect costs”; and
• to support people to make informed, affordable and sustainable financial decisions about care.

Before the financial assessment

16. Paragraph 6.134 of the CSSG states that after assessing a person’s needs under the Act, the Council must:
• agree with the adult concerned which of their needs they would like the Council to meet;
• consider how it can meet these needs in order to determine whether some of these services may be chargeable; and
• where services may be chargeable, carry out an FA.

Financial assessment

17. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs (Care Act 2014, section 14). Councils must assess a person’s finances to decide what contribution, if any, they should make to the cost of their care.

The Council’s policy

18. The Council has an Adult Social Care Charging Policy (the Policy). Amongst others; the Policy states that:
• charging for care and support will be clear and transparent, so adults know what they will be charged;
• information will be provided to all adults required to pay towards their care and support, explaining the Policy;
• the FA will be carried out as soon as possible following the completion of the care and support plan; and
• a provisional indication of the level of contribution will be indicated immediately, where possible.

What happened

19. Early in November 2021, Mrs X’s GP practice referred her to the Council’s reablement service.
20. The Council assessed Mrs X’s eligibility for reablement care at the beginning of December 2021. It proposed that Mrs X would receive help to remain independent in her home. Free reablement support started in the middle of the month.
21. The Council carried out further reviews and assessments linked to the amount of reablement care needed throughout January and February 2022. An assessment under the Act was completed mid-February 2022 to decide what help Mrs X may need going forward. Any help provided under the Act would be chargeable subject to an FA.
22. At the beginning of March 2022, the Care Agency (the Agency) who was proposed to take over the provision of home care for Mrs X contacted the Council. It discussed the support it could offer and the timings of visits.
23. The Council’s reablement occupational therapist (OT) contacted Mrs X to discuss the proposed care support package. Mrs X verbally accepted the offer.
24. The Council’s brokerage team formally accepted the offer a few days later.
25. Mrs X’s package of free reablement care provided by the Council stopped early in March 2022. The Agency then took over.
26. In mid-March, a week after the Agency had taken over Mrs X’s care, the Council made a referral for an FA to be done. Council notes show that it verbally informed Mrs X she would need to pay a “client contribution” for her care. The Council has confirmed to us that it did not give Mrs X any information about finances and possible chargeable care in writing.
27. The next day, Mrs X told the Council she had not realised she would need to pay towards care and was worried she could not afford to contribute. It advised Mrs X that if she could provide receipts for some of the help she was having around the house from a cleaner and gardener, then these costs could be considered as part of any FA.
28. The Council was unable to give Mrs X a preliminary outcome relating to the FA as she was unsure on what receipts she would be able to gather. The Council sent FA paperwork in the post for her to complete. It set a deadline for the return of the paperwork for the beginning of April.
29. Mrs X sent the FA paperwork by the deadline date. She did not include any supporting bank statements.
30. After a reminder letter from the Council to request supporting documentation, Mr Y sent it to the Council at the end of April.
31. In the middle of May 2022, Mrs X sent further supporting evidence for the FA to the Council. It assessed that Mrs X would need to contribute around £180 per week to the ongoing care being provided by the Agency. Mrs X said she did not feel she could pay this amount and immediately stopped the Agency’s visits.
32. At the beginning of June 2022, the Council called Mrs X to discuss her assessed contribution amount and again advised if she could provide receipts for costs of help around the house, these costs could be assessed. Mrs X asked the Council to write off the money she owed for chargeable care.
33. Further communication passed between Mrs X, Mr Y and the Council over the coming months. Mr Y complained to the Council in August 2022 about the bill for his mother’s assessed contribution. The Council’s complaint response confirmed it would not cancel Mrs X’s outstanding invoice.
34. After communication between the Council and Mrs X’s GP practice, a further assessment under the Act was completed in November 2022. Mrs X advised that she was still unable to contribute towards care support costs and declined a financial reassessment.
35. The Council says Mrs X owes £2198.67 for costs of care support after the free reablement care had ended in March and until Agency visits were stopped.

Analysis

Assessments

36. Mr Y complains the Council did not ensure Mrs X understood care was chargeable or allow her to pause the chargeable care until it knew what her contribution would be.
37. The Council should have:
• provided information to Mrs X to comply with section 4 of the Act and related CSSG guidance;
• completed an assessment of needs under section 9 of the Act, in an appropriate and reasonable timescale;
• completed a care plan and FA which should then be shared with the individual concerned. This should include a personal budget which shows the total cost of the care package to the Council and how much of it the individual will be expected to contribute.
38. In its complaint response to Mr Y, the Council said that during a visit from the OT in February 2022, it verbally advised Mrs X care would be chargeable and that an FA referral would be made.
39. The Council has provided no notes or evidence to support this. It is unclear if it advised Mrs X what her maximum contribution might be. There is no evidence to suggest any FA was started at this time. There is also no evidence to suggest why it took the Council so long to do the assessment given that Mrs X was first referred to it in November 2021.
40. The Council says it would have told Mrs X during these verbal discussions that it would not undertake an FA until a new provider had been sourced. The Council has not provided convincing reasons for this delay. It contradicts its policy of completing an FA as soon as possible. In any case, this did not occur. Given that Mrs X had a longer period of reablement care than usually offered, the Council had even longer to have begun an FA.
41. In mid-March 2022, and one week after chargeable care support by the Agency had started, a social worker contacted Mrs X to check how the transition to the Agency had gone. Notes from this call show that it did “not look as if one (an FA) has been requested.” It was only at this time that a referral for an FA to be completed was then made.
42. Mrs X and Mr Y returned supporting documents for the assessment to be completed at the end of April 2022.
43. In its response to my enquiries, the Council accepted that this case “has demonstrated Mrs X may not have fully understood the process and implications of moving to a long-term care package and that by having these discussions verbally as opposed to providing information in a written format the service has not given Mrs X the opportunity to weigh and reflect on the costs she may occur.”
44. The Council said it would offer to apologise to Mrs X and develop a leaflet to provide people with key information they need to make a decision before agreeing to long term care.
45. As a remedy, the Council has also offered to reduce Mrs X’s outstanding invoice. It has offered a reduction of approximately one-third which it feels acknowledges it acted with fault but takes into consideration the delay in Mrs X returning her supporting documentation.
46. Whilst I accept a delay was caused by Mrs X, she would not have been in the position of having such a large invoice if the Council had acted in accordance with the guidance set out. On the balance of probabilities, it is likely that if Mrs X had been aware of the amount the care would cost to her, she would not have accepted it. As soon as Mrs X did find out the exact amount, she immediately cancelled Agency visits as she did not feel she would be able to pay.
47. I am pleased the Council has offered to make service improvements and recognised that a remedy is appropriate for Mrs X. However, I do not consider the Council’s offer to be an adequate remedy.
48. The Council is at fault because it:
• failed to provide information at the outset of the process in line with section 4 of the Act;
• delayed in starting an assessment of needs under the Act;
• failed, when the assessment was completed, to act in line with 6.134 of the CSSG and failed to provide Mrs X with an indicative cost to her; and
• delayed in starting the FA where records show this oversight was only realised by the social worker calling to check on the transition to the Agency.
49. The failures outlined above mean that Mrs X did not have the information she needed to make an informed choice about chargeable care. She lost the opportunity to defer the care before it started when she was still unaware of the costs involved. Since Mrs X immediately cancelled the care package as soon as she became aware of the costs to her, on the balance of probabilities, it is likely she would not have gone ahead with the care if she had all of the information at the right time. These failures have caused Mrs X avoidable costs and both her and Mr Y avoidable distress.
50. I note that Mrs X and Mr Y took more than six weeks to provide supporting financial documentation and it was open to them to do this sooner. However, this would not have been an issue had the Council done what it should and given Mrs X enough information to make an informed choice early enough in the process. It is likely Mrs X would have chosen to reject or defer chargeable care until the FA was completed. I have made a recommendation below to remedy the injustice caused by the Council’s faults.

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Agreed action

51. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks from the date of my final decision:
• apologise to Mrs X in line with its suggested remedy;
• apologise to Mr Y for the distress caused by the issues complained of;
• cancel the full invoice for chargeable care Mrs X received; and
• review its processes in line with the Act and CSSG guidance outlined above.
52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

53. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

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Investigator's decision on behalf of the Ombudsman