Summary: Mrs X complained about how the Council dealt with Mr Y, her late husband’s non-residential care charges. The Council was at fault for its failure to complete a financial assessment for Mr Y in 2021 and its failure to inform the family about his assessed contribution. The Council was also at fault for its delay with issuing an invoice for Mr Y’s care charges. This caused injustice to Mrs X. The Council will take action to remedy the injustice caused.

The complaint

1. Mrs X complained on behalf of her late husband, Mr Y.
2. Mrs X complained the Council did not:

• complete a financial assessment for Mr Y before it commissioned a non‑residential care for him
• inform her and the family about the cost of the Day Care Service it provided to Mr Y before he passed away
• send her the invoice for Mr Y’s care fees until one year after his death.

3. Mrs X said the matter caused her and her family significant distress, shock, anxiety and it has been difficult to grieve her late husband with the Council chasing her for the care cost she cannot afford.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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.
8. 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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What I have and have not investigated

9. I have exercised discretion to investigate matters from 2021. This is because I needed to consider the whole period to carry out a meaningful investigation.

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How I considered this complaint

10. I considered the information Mrs X and the Council provided about this complaint.
11. I sent Mrs X and the Council a copy of my draft decision and considered the comments received before reaching a final decision.

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What I found

Law and guidance

12. The Care Act 2014, the Care and Support Statutory Guidance 2014 and the Care Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support, and its powers to charge.
13. Councils should develop and maintain a policy setting out how they will charge people for the cost in settings other than care homes. Councils must carry out a financial assessment to make a decision about the charges. This will assess the person’s capital and income.
14. The upper capital limit is currently set at £23,250 and the lower at £14,250. A person with assets above the upper capital limit are required to pay for their own care. Even if the capital is below the threshold of £23,250, residents may have to pay a contribution from their income towards their care.
15. Once a council completes the financial assessment, it must give a written record of the assessment to the person. It should explain how the assessment has been carried out, what the charge will be, how often it will be made and if there is any fluctuation in charges, the reason. Councils should ensure that this is provided in a manner that the person can easily understand, in line with its duties on providing information and advice.

Council’s Charging Policy

16. A financial assessment will be undertaken for all adult persons in receipt of chargeable services.
17. There are no set timescales in law and guidance to complete a financial assessment, however, the Council will aim to complete an assessment as soon as reasonably practical after receiving all the required information and proofs.
18. Where the financial assessment has not been completed at the time that care starts, the Council will backdate any outstanding charges to the date when it started meeting the person’s care and support needs.
19. If a person refuses to co-operate with a financial assessment, they will be required to pay the full cost of their care and support services from the start date of their services unless information as to their capital and income is already available to the Council in which case those figures may be used to inform the assessment. If subsequently the person does provide the required information the contribution payable will be reassessed and may be backdated.

Background

20. In December 2019, the Council completed a financial assessment (FA) for Mr Y regarding charges for his care services. This was to determine how much Mr Y would contribute towards his care. The outcome of the FA was that Mr Y would make a maximum weekly contribution of £142.32 for chargeable non-residential services. Mr Y was then assessed not to need any care support at the time.

Key events

21. In February 2021, the Council gathered relevant information for Mr Y’s care and support assessment via a telephone call in line with COVID-19 pandemic guidelines. During the telephone conversation, the Council said Mrs X mentioned Mr Y would require Day Care services to support her in her caring role.
22. In March 2021, the Council informed Mr Y it needed to carry out an FA to work out how much he would contribute towards his care. The Council sent Mr Y an FA form and copies of other financial advice. It asked Mr Y to either complete the FA form and return it with a pre-paid envelope it provided, or he could complete an online FA form via its website. The FA cover letter stated if Mr Y did not complete the FA form within 14 days, at the latest, he might be assessed as liable for full cost of his care. Mr Y did not complete the FA form.
23. The Council contacted Mrs X and discussed how Mr Y’s daily care needs would be met. Mrs X accepted the offer of Day Care services, hot meals, and transportation to and from the Day Care placement for Mr Y. Mrs X asked the Council to contact her daughter [Ms Z] and share all the information they discussed, and the outcomes agreed about Mr Y’s care needs. Mrs X said this was because Ms Z supported her with all her financial affairs.
24. In April 2021, the Council had a telephone conversation with Ms Z as requested by Mrs X. During the call Ms Z confirmed Mr Y had started attending the Day Care placement commissioned by the Council. The Council said it discussed assessed contributions and FA with Ms Z and she confirmed she would try to complete the FA form the same day and return it to the Council. Ms Z did not complete the FA form.
25. Mr Y attended the Day Care placement between April 2021 and September 2021 before he passed away.
26. In June 2022, the Council sent Mrs X an invoice of £2,962.14 for Mr Y’s Day Care charges.
27. In April 2023, Mrs X made a formal complaint to the Council. She said she was shocked and disappointed with the Council’s invoice of £2,962.14 for Mr Y’s Day Care charges. Mrs X said the Council did not inform her about any cost implications for the Day Care services and therefore she was unable to make an informed decision about taking up the offer at the time. Mrs X said although the Council discussed the need for an FA to be completed with Ms Z, it went ahead with the Day Care provision for Mr Y without completing an FA. Mrs X said she accepted the offer because she believed the placement was provided to Mr Y as a form of respite for her in her caring role.
28. In its responses to Mrs X’s complaint, the Council said:
1. it discussed and gave information about Mr Y’s Day Care placement, assessed contribution and financial assessment to Ms Z as requested by Mrs X
2. Mrs X accepted the placement offer for Mr Y
3. it sent the FA information to Mrs X and Ms Z to complete and return but the family did not
4. when it received no further financial information from Mr Y’s family, it completed an FA in May 2022 based on the FA it completed for Mr Y in December 2019. The Council said this was the better option because it was a lower contribution than to have applied a full cost charge for Mr Y’s non‑disclosure of financial information under Regulation 10 of the Care and Support (Charging and Assessment of Resources) Regulations 2014
5. there are no timescales in law and guidance regarding when councils must complete an FA
6. according to its charging for social care and support policy:

• it has the power to charge for meeting a person’s care and support needs from the moment it starts to meet those needs.
• where the FA has not been completed at the time that care starts the Council will backdate any outstanding charges to the date when it started meeting the person’s care and support needs.

29. Mrs X remained dissatisfied with the Council’s responses. She maintained the Council did not inform her and Ms Z of the Day Care charges. Mrs X said if it did, she would not have agreed for Mr Y to start the placement because she could not have afforded it. Mrs X questioned why the Council went ahead with the placement without completing an FA for Mr Y and without the family signing and/or agreeing to the placement charges. She also questioned why the Council did not send her Mr Y’s invoice after a month he started the placement and it had to wait until a year after he passed away. Mrs X said if the Council had sent her an invoice shortly after he started attending the Day Care, she would have known about the care charges and stopped Mr Y from attending the placement. Mrs X said the Council should write off the £2,962.14 outstanding fees.
30. Mrs X made a complaint to the Ombudsman.

Analysis

31. The law and guidance do not specify a timescale for completing an FA, however, councils are expected to complete FAs in a timely manner. In this case, the Council did not complete an FA for Mr Y until May 2022. Consequently, the Council failed to provide Mr Y a written record of any FA outcome, any contribution he was assessed to pay towards his care and how the charges would be paid. These were faults and not in line with the provisions of the Care Act 2014. This caused uncertainty to Mrs X.
32. However, I note the FA cover letter the Council sent to Mr Y in March 2021 stated if the FA form was not completed within 14 days, at the latest, he might be assessed as liable for full cost of his care. This mitigated the injustice caused to Mrs X. This is because she was aware prior to the provision of the Day Care services that Mr Y might have to pay the full cost of his care if he did not provide all the financial information requested by the Council to complete his FA.
33. We would also expect service users and/or their representatives to be proactive when they are aware there might be a charge. They should not generally assume the absence of a completed FA implies they will not have to pay anything towards care. In this case, there was no evidence to show the family chased the Council for the completion of Mr Y’s FA and any resulting outcomes which further mitigated any injustice caused to Mrs X. They would have been alerted to the fact there was a charge because of Mr Y’s 2019 FA and the FA cover letter the Council sent to Mr Y in March 2021.
34. The Council said when it did not receive further financial information from Mr Y’s family, it completed an FA in May 2022 based on the previous assessment it completed for Mr Y in December 2019. While it was likely Mr Y’s financial circumstances might have changed between 2019 and 2022, I do not find fault by the Council with its approach. This is because the Council’s rationale and the action it took were in accordance with the provisions of its charging policy. The Council explained it used Mr Y’s December 2019 assessed figures because it was a lower contribution than to have applied a full cost charge for Mr Y’s non‑disclosure of financial information. Therefore, I find the Council took a more favourable position and there was no evidence to suggest if Mrs X provided the relevant financial information that the care costs would have been less and/or not the full amount.
35. Furthermore, based on the Council’s points in paragraph 28(f), the Council backdated the Day Care charges to when Mr Y started attending the placement in April 2021. Mrs X said she believed the Council commissioned the Day Care service for Mr Y as a form of respite for her in her caring role. We had no evidence to suggest the Council told Mrs X there would be no charge.
36. Mrs X also said had the Council completed Mr Y’s FA in 2021 and had she known about the Day Care charges she would not have accepted the offer. She said this was because she could not and cannot afford it. While the Council’s commissioned service may have benefited Mrs X as a carer, the service was provided to Mr Y and the charge was therefore neither free nor based on Mrs X’s income alone. Therefore, I find the Council backdating Mr Y’s care charges to April 2021 was in line with its charging policy, and it was not fault.
37. The Council did not issue an invoice of £2,962.14 for Mr Y’s Day Care charges until June 2022. This was approximately 14 months after Mr Y first attended the placement and approximately 9 months after he passed away. This was a significant delay, and it was fault. We would expect an invoice to be issued within about a month of when Mr Y started receiving non‑residential care. Also, there was no evidence to show the Council reviewed its commissioned service between April 2021 and September 2021 when Mr Y attended the Day Care placement. This amounts to further fault by the Council.
38. I find the Council missed out on these opportunities to have informed Mrs X about its charging decision and Mr Y’s assessed contribution towards his care costs sooner. These faults caused undue distress to Mrs X.
39. I appreciate Mrs X was distressed by the receipt of a large bill some months after Mr Y passed away. But I have no ground to direct the Council to write off the £2,962.14 outstanding care charges as it is within the Council’s right to charge for the care services provided to service users. Mr Y got the benefit of the care service and as stated earlier Mrs X was aware there might be a charge for the service provided to Mr Y.

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Agreed action

40. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Mrs X and make her a symbolic payment of £400 to acknowledge the uncertainty and distress caused by the Council’s failings as identified above. The apology should be in accordance with our guidance, Making an effective apology
• offer Mrs X an affordable repayment plan option for her to pay Mr Y’s outstanding care costs of £2,962.14 by instalments
• review the Council’s systems and practice to ensure it completes financial assessments in a timely manner
• by training or other means remind relevant staff they must issue service users with written record of the financial assessment outcome at an early stage which clearly sets out their assessed contributions towards their care and details of how the payments will be made
• remind relevant staff of the importance and need to issue care cost invoices to service users, their families and/or representatives in a timely manner and as soon as practicable after they start receiving care.

41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I find evidence of some faults by the Council leading to injustice. The Council will take action to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman