Summary: Mr C complained the Council delayed telling his late father-in-law about the financial contribution he would need to make towards the cost of his care and about the care provided. Mr C said this led to unexpected costs which caused unnecessary upset and anxiety. We have found fault by the Council in the time taken to complete a financial assessment but consider the agreed action of an apology and symbolic payment provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains the Council unreasonably delayed telling his late father-in-law (Mr X) about the financial contribution he would need to make towards the cost of his care. Mr C also complains the care provided was not satisfactory as carers did not attend for the time set out in the care plan or provide the care agreed.
2. Mr C says because of the Council’s fault, care had already been in place for some time before the Council told his father-in-law about his contribution which meant he could not make an informed choice about this care. Mr C also says his father-in-law later received a bill that unexpectedly backdated the costs which caused him and his family unnecessary stress and anxiety.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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 read the papers provided by Mr C. I have also considered information from the Council. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

8. Intermediate care and reablement support services are for people usually after they have left hospital or when they are at risk of having to go into hospital. They are time-limited and aim to help a person to preserve or regain the ability to live independently. The National Audit of Intermediate Care lists four types of intermediate care:

• crisis response – services providing short-term care (up to 48 hours);
• home-based intermediate care – services provided to people in their own homes by a team with different specialties but mainly health professionals such as nurses and therapists;
• bed-based intermediate care – services delivered away from home, for example in a community hospital; and
• reablement – services to help people live independently which are provided in the person’s own home by a team of mainly care and support professionals.

9. 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)
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. 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.
    

Key events

12. Norfolk First Support (NFS) provides up to six weeks of support and reablement in a person’s home for the Council. The Council’s website confirms there is no charge for the reablement support service for up to six weeks. It also sets out that it can become apparent after a few weeks that a different service to reablement is required and that if a different service is needed either before or after the six weeks of reablement the support would not be free.
13. Mr C has explained his father-in-law, Mr X, spent time in and out of hospital during 2022. Mr C has also explained his wife works for NFS.
14. NFS visited Mr X on 10 March following his discharge from hospital after surgery. The record for this visit says the service specification and charging policy were explained and a financial information sheet provided.
15. The Council has confirmed Mr X received reablement care which was non-chargeable for the periods 8 March to 7 April, 1 to 7 July, 3 to 11 August and 1 to 13 September 2022. Mr C has disputed these dates in response to an earlier draft of my decision. Mr C says they are 2 to 6 July and 3 to 8 August and Mr X returned to hospital briefly on 3 September. I do not consider it proportionate to investigate this conflict in the dates further given the relatively minor difference involved.
16. Mr C has confirmed they were provided with a copy of the charging policy during a home visit on 5 August. Mr C also says they were advised they would be told the date any charge started and a financial assessment would be completed to decide any amount due.
17. The NFS Charging Policy document says NFS provides a free service for up to six weeks whilst assessment and reablement is being provided. It says if reablement continues beyond six weeks there may be a charge. It also sets out that once assessment and reablement has been completed and an ongoing care package identified people will be charged even if this takes place within the six week period. The document goes on to say the reablement practitioner will make people aware the date the service becomes chargeable. From the date the service becomes chargeable the policy says the reablement support workers will fill in the time they have provided for each visit on a form and ask for a signature at the end of each week.
18. The Council contacted Mr X’s daughter by telephone on 8 September to arrange a care assessment following his most recent discharge from hospital. The Council’s record of this conversation says advice on the charging policy was provided and Mr X’s daughter stated Mr X’s savings were below the threshold amount. A home visit was agreed for 13 September.
19. The Council completed an assessment with Mr X of his care needs at his home on 13 September 2022 with both his daughter and Mr C present. The Council has a record dated 15 September to say charges were discussed with Mr X’s daughter who was aware of the charging policy as they worked for NFS and that Mr X had consented to a financial assessment. The Council has provided a copy of the care plan prepared which sets out 3 daily visits and that the maximum contribution had not yet been assessed. The Council’s records show the care plan was sent to the family on 19 October.
20. The Council has confirmed the long-term care it had arranged started from 14 September.
21. The Council completed a telephone review on 17 October. The record says Mr X’s daughter was unwell and so a home visit was not possible. The note of the telephone call records no issues were reported by either the family or care provider at that time.
22. The Council emailed Mr X’s daughter on 18 October following a telephone call that day. The Council provided a link to its online financial assessment and confirmed it needed to complete this assessment to work out the contribution following the set-up of Mr X’s care provision. The Council confirmed it would provide an estimated contribution based on the details that were provided. The Council sought this information within seven days.
23. The Council emailed Mr X’s daughter on 2 November to acknowledge receipt of her online financial assessment. The Council explained there were no documents attached and listed the evidence it required to complete the assessment. Mr C replied the same day to confirm receipt and that they would provide the information requested. Mr C asked about how to record the rent and Council Tax contribution Mr X made.
24. The Council completed a further telephone review on 6 December. Mr X’s daughter explained they had cancelled the evening call as the agency was not doing anything at this call and Mr X was now able to get himself to bed. The Council confirmed with the provider that the evening calls had been cancelled from the end of November although they were covering two weekends when Mr X’s daughter was away. The review records the family were happy with the care in place and that it was meeting Mr X’s needs.
25. The Council replied to Mr C’s email of 2 November on 14 December. The Council sought to clarify the intentions around whether Mr X would be returning to the matrimonial home to reach a decision about whether to disregard this property. The Council explained it could not include the rent and Council Tax Mr C had highlighted as Mr X had no legal liability for these but confirmed it would disregard £194.70 of his weekly income as being for his living expenses. The Council also reminded Mr C of the outstanding information required for it to be able to complete the financial assessment.
26. Mr C emailed the Council on 20 December to make some minor changes to the information contained in Mr X’s Care Support plan. Mr C also emailed the Council separately on 20 December with further financial information in order for the financial assessment to be completed. Mr C advised Mr X still hoped to return to the matrimonial home in due course. Mr C was to send further information in due course. Mr C asked the Council to confirm the proposed start date for the charges and what the remit would be for the care workers.
27. The Council responded to Mr C on 16 January 2023 to remind him the Council still required confirmation about Mr X’s intentions in relation to returning to the matrimonial home as it could not complete the financial assessment without this information. The Council also confirmed Mr X’s care became chargeable from 14 September 2022. The Council confirmed the care being provided would be in accordance with the care plan and advised Mr C of the contact for the relevant team.
28. Mr C emailed the Council on 16 January to say he had advised Mr X’s intention to return to the matrimonial home in an email dated 20 December although other options were still being considered. Mr C asked when the Council had advised the care had become chargeable as they would have paid more attention to the care being provided if they had known it was being charged. Mr C said he had checked the footage from the ring doorbell on a few occasions and the time spent was under 45 minutes.
29. The Council responded on 18 January to say it had located Mr C’s previous email and apologised for the misunderstanding and confirmed it had decided to disregard the property. The Council attached a copy of the financial assessment and covering letter as set out below.
30. The Council wrote to Mr X care of Mr C on 18 January to confirm Mr X would need to pay £141.34 per week towards the cost of his non-residential care from the first day of his chargeable service. The letter enclosed a copy of the financial assessment which set out the chargeable date was from September 2022. The Council also enclosed information about to apply for disability related expenses and how to seek a review of the assessment. The Council confirmed the first invoice would be raised on 13 February for the period 14 September 2022 to 1 January 2023 and this would be for approximately £2,121.
31. The Council issued the first invoice for Mr X’s care costs on 15 February to Mr C which sought £2,120.10 for the period from week ending 18 September 2022 to week ending 1 January 2023.
32. Mr X has sadly passed away since the above events.

My consideration

33. Mr C has highlighted the section in the charging policy that refers to being told the date the service becomes chargeable and that from that date the reablement support workers will fill in the time they have provided for each visit on a form and ask for a signature at the end of each week. Mr C says this did not happen.
34. I consider there has been a misunderstanding here. The policy is referring to the continuation of reablement services beyond the six weeks as these may be chargeable and, if so, the service would need to be recoded in order for the cost to be calculated. This is not what happened as the reablement services did not continue after the six week period.
35. The charging policy makes clear that once assessment and reablement has been completed and an ongoing care package has been identified as needed people will be charged even if this takes place within the six week period. This is what happened here.
36. Mr X was receiving intermittent reablement services during the period March to September when he was in and out of hospital. In line with the charging policy these were free. However, once the need for long term care was identified at the September assessment this care was chargeable subject to the outcome of a financial assessment.
37. Although a finely balanced decision I consider Mr X’s family was aware there would be a charge for his care once the reablement service ended and long-term care was being provided from September. This is set out in the policy which the records show was provided to Mr X’s family in March and August 2022. Mr C has confirmed they had the policy in August. This was before the care became chargeable. I have also noted that Mrs C worked for NFS and advised the Council she understood the charging policy. Although there may have been a misunderstanding about the reference in the policy to being told when reablement care became chargeable as set out above I do not consider this was due to some fault in the policy wording or communication by the Council.
38. However, there was a delay between the September assessment and the Council providing details of its online financial assessment process to Mr X’s family on 18 October. There was a further delay between Mr C’s request for information in his email of 2 November and the Council’s reply of 14 December. There was a further delay between Mr C’s email of 20 December providing further evidence for the financial assessment and clarifying Mr X’s intention about returning to the matrimonial home and the Council proving the outcome of its assessment to Mr C on 18 January 2023. I consider the delays when taken together constitute fault.
39. Without the delays I consider Mr X’s family would have been made aware of the misunderstanding sooner. Although Mr C has suggested in his correspondence they would have kept a closer eye on the care being provided if they had been aware it was not free it is too speculative to say if the family would have acted differently. The two telephone assessment reviews did not highlight any concerns about the quality of the care being provided or that it was not meeting Mr X’s needs.
40. If there is clear evidence of a quantifiable financial loss arising from the fault, we will normally recommend a financial remedy that repays that loss to the deceased person’s estate. I do not consider this is the case here. The care Mr X received from September 2022 was chargeable and he was assessed as having to contribute towards the cost of that care. Although there may have been a misunderstanding by the family here, I have found no evidence of fault by the Council in the information provided at the time. There are no grounds for me to recommend the Council waive the care fees.
41. Where the injustice is less tangible as in this case we will not normally recommend a symbolic remedy in the same way as we might for someone who is still living. We do not expect councils to make a symbolic payment to someone’s estate. This is because these are remedies for injustice to that person which can no longer have effect.
42. However, I do consider the delay identified above meant there was a missed opportunity to provide an earlier and clear explanation to Mr C about the charging policy and its application in these particular circumstances. I am satisfied this has caused Mr C a degree of avoidable frustration and inconvenience.

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Agreed action

43. The Council has agreed to take the following action to provide a suitable remedy to Mr C within one month of my final decision:

• write to Mr C to apologise for the delay identified in the financial assessment process; and
• pay him £200 for his avoidable frustration and inconvenience.

44. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I have completed my investigation as I have found fault by the Council but consider the agreed action provides a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman