Summary: The Council’s adult social care charging policy says it charges people for the expected costs of their care, and, if they receive less care than they paid for, it will only review their invoices and refund them once a year. There is no fault in this approach, as the law does not prevent the Council from taking it. However, the Council offered to review Mr B’s invoices more regularly if he wanted, and, although his daughter complained about the infrequent reviews, did not do so. This was fault by the Council. It was also at fault for its handling of Mr B’s daughter’s complaint. It has now agreed to consider offering Mr B more regular reviews of his invoices. It has also agreed to apologise to Mr B’s daughter, and to make a symbolic payment to recognise her injustice.

The complaint

1. The complainant, whom I refer to as Mrs C, complains on behalf of her father, whom I refer to as Mr B. Mr B receives care at home, and pays the full cost of the care to the Council. He does not have the capacity to make the complaint himself.
2. Mrs C complains that the Council’s charging policy says it charges people the cost of their planned care each month. If they have not received that care, it still charges them for what they should have received. And it only refunds people once a year when it reviews its accounts.
3. Mrs C says this means Mr B paid £249 for care he did not receive while he was in hospital. She says this money would be of benefit to him and the Council should not hold onto it. She wants to Council to change its policy and invoice people every month for the care they actually received.
4. Mrs C also says the Council caused her frustration by failing to respond to her complaint in a timely manner.

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The Ombudsman’s role and powers

5. 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)
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 considered information from Mrs C and the Council. Both 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

Mr B’s invoices

The Council’s statutory responsibilities

8. Councils can choose to charge for non-residential care. If they decide to charge, they 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, sections 14 and 17)
9. People receiving care and support other than in a care home need to keep a certain level of income to cover their living costs. After charging, their income must not reduce below a weekly amount known as the ‘minimum income guarantee’ (MIG). This is set by the government and reviewed each year. Councils can allow people to keep more than the MIG. (Care Act 2014)
10. If a council has agreed to meet someone’s needs, it must give them a ‘personal budget’. This gives them clear information about the money allocated to meet their needs. The personal budget must always be enough to meet those needs. (Care and Support Statutory Guidance 2014)

The Council’s charging policy

11. When the Council arranges care for a self-funder (someone who pays the full cost of their own care) it invoices them, monthly, for the full amount of their personal budget, rather than the cost of the actual care received.
12. If someone goes into hospital for a period of 14 days or less, their home care package will remain in place and they will continue to be charged. This guarantees that their home care is still in place when they return home.
13. The Council reviews each person’s invoices every year and will ensure that, if someone has received less care than they have paid for, they are refunded. This is the standard approach which applies unless someone asks for this to happen more regularly. The Council charges for every review of someone’s invoices.

My findings

14. It is not the Ombudsman’s role to tell a council what to put in its charging policy. However, we expect councils to have regard to law and statutory guidance when they write policies, and, if a policy obviously does not meet the terms of that law or guidance, we will ask the council to review it.
15. There is nothing in the Care Act, the Regulations or the statutory guidance to suggest that the Council is not entitled to take the approach it does (to review invoices every year and refund any overpayments). This is unlikely to reduce someone’s income below the MIG as they only ever pay what they can afford (particularly in Mr B’s case as a self-funder). And the Council explains its approach fully in its charging leaflet.
16. As a result, I have no reason to find fault with the overall approach described in the Council’s policy.
17. However, the letter the Council sent to Mrs C before her complaint (which explained its approach to charging) said:

As we charge you for care that you are expected to receive, we will reconcile this against the actual amount of care you have received every year unless you ask for this to be done more frequently – there is a charge of £6.85per additional reconciliation.

18. Although Mrs C expressed significant dissatisfaction with the yearly invoice reviews in her complaint, the Council did not consider whether to conduct the reviews more frequently (despite offering to in its letter).
19. This was fault by the Council. It should now consider whether it would be appropriate to offer Mr B a more regular review of his invoices (with associated additional costs).

Complaint handling

The Council’s complaints policy

20. The Council operates a system for grading complaints based on the level of risk and the severity or complexity of the matters complained about. It grades each complaint as ‘red’, ‘amber’ or ‘green’.
21. The Council aims to respond to 95% of ‘green’ complaints within 10 working days, and 95% of ‘amber’ and ‘red’ complaints within 25 working days. It will tell the complainant at the outset (and within three working days of the complaint) what the timescale will be.

What happened

22. Mrs C complained to the Council in December 2022. The Council acknowledged her complaint and said it was graded ‘amber’. The Council said it would respond by the end of January 2023.
23. The Council did not respond by the end of January, and did not update Mrs C about the delay. She sent an email about this a fortnight after the deadline, and the Council told her it would respond by the end of February.
24. The Council did not respond by the end of February. Mrs C sent another email about this, and the Council told her it would respond by 8 March.
25. The Council did not respond by 8 March. Mrs C sent another email about this, and the Council responded on 21 March. The response was dated 13 February; however, it was not sent until March.

My findings

26. The Council was at fault for how it handled Mrs C’s complaint. Although its policy does not set a ‘hard deadline’ for complaints, it says it will tell each complainant when they will receive a response.
27. The Council did this in Mrs C’s case – three times – but failed to meet each deadline. This meant she had to repeatedly go to the time and trouble of emailing the Council to enquire about a response.
28. The Council should apologise, and should offer Mrs C a symbolic payment to recognise the extra effort she had to go to in making her complaint.

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Agreed actions

29. Within four weeks, the Council has agreed to:
• Consider whether to offer Mr B more regular reviews of the invoices for his care costs – and more regular refunds if applicable – and write to Mrs C with its decision.
• Apologise to Mrs C for the delays in its complaint-handling.
• Make a symbolic payment of £100 to Mrs C to recognise the avoidable time and trouble she went to in trying to get a response to her complaint.
• Provide us with evidence it has completed these actions.

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Final decision

30. The Council was at fault for not considering its power to refund Mr B more regularly for care he did paid for but did not receive. It was also at fault for its handling of Mrs C’s complaint.

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Investigator's decision on behalf of the Ombudsman