Summary: Ms X complains the Council failed to deal properly with the charges for her father’s care, including failing to take account of the fact he had dementia and his family could not access his money until after he died. The Council failed to deal properly with the charges for her father’s care. This resulted in it charging his estate legal costs and interest, despite having no policies for doing so. It also put Ms X to significant time and trouble in pursing the complaint. The Council needs to apologise and refund money to her father’s estate. It also needs to improve its working practices.

The complaint

1. The complainant, Ms X, complains the Council failed to deal properly with the charges for her father’s care, including failing to take account of the fact he had dementia and his family could not access his money until after he died.

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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 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)
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)
4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, sections 24A(1)(A) and 25(7), as amended)

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How I considered this complaint

5. I have:
• considered the complaint and the documents provided by Ms X;
• discussed the complaint with Ms X;
• considered the comments and documents the Council has provided in response to my enquiries;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Ms X and the Council, for me to consider before making my final decision.

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What I found

What happened

2020

6. Ms X’s father, Mr Y, went into hospital in February 2020, having had a stroke. When ready to leave hospital, the Council assessed Mr Y’s need for care and support under the Care Act 2014. They agreed he would need four double handed calls a day, when he returned home. The assessment identified no issues with his capacity to make decisions for himself.
7. Mr Y was given a leaflet about care charges in March 2020. He left hospital on 3 April under the COVID-19 discharge to assess pathway, which meant he did not have to pay for his care for the first six weeks. He returned to the home he shared with his wife and son.
8. The Council sent financial assessment forms to Mr Y on 1 April and 29 April, but he did not return them.
9. The Council reviewed Mr Y’s care package on 1 May. They agreed the care package would remain in place (four double handed calls a day, 45 minutes each morning, 30 minutes at lunchtime, 30 minutes at teatime and 30 minutes in the evening). The Council told Mr Y’s son about the need for a financial assessment and he confirmed having received the financial assessment form. The review identified no issues with Mr Y’s mental capacity. The Council updated Mr Y’s care and support plan, which said the cost of his care package was £556.61 a week. However, despite having consulted clients about a change in its practice, it appears the Council only charged for one care worker because of “challenges” with its information technology. In effect this halved the weekly cost of Mr Y’s care package, although there is no evidence the Council explained this to him.
10. The Council sent Mr Y another financial assessment on 27 May, but he did not return it.
11. As Mr Y did not complete a financial assessment form, the Council was entitled to treat him as a full cost payer, under the Care and Support Statutory Guidance. However, there is no evidence the Council wrote to Mr Y to explain this. Nor did it send him invoices for his care. Mr Y’s family accept he was a full cost payer, as he had capital over £23,250.
12. According to information from the Council, it started charging Mr Y from 3 April. But the initial charges were an error, as there should have been no charge for the first six week (i.e. until after 14 May).
13. According to the Council’s records, Ms X rang on 21 July and said her father “should have been financially assessed under the government COVID-19 care assessment policy”. The Council referred Ms X to its brokerage team. There is no record of further contact from Mr Y’s family at that time.
14. In August the Council updated Mr Y’s care and support plan as the family said they could provide more help, and no longer needed the lunchtime call. According to the updated plan, this left two double handed calls a day (30 minutes in the morning and at teatime). This reduced the cost of his care package to £247.38 a week. There is nothing in the Council’s records to say when the evening calls had been stopped. However, the records show they evening calls continued until 13 August.
15. The Council updated Mr Y’s care and support plan again in September, as the care provider said the morning call should have been left at 45 minutes. This increased the cost to £312.90 a week.
16. On 21 September the Council sent another financial assessment form to Mr Y, but he did not return it.
17. On 22 September the Council noted Mr Y should have been eligible to six weeks of free care when he left hospital in April and updated its records to reflect this.
18. On 15 October the Council sent a “reminder” letter to Mr Y.
19. The Council reviewed Mr Y’s care package on 16 November. It noted there appeared to have been no financial assessment. It updated Mr Y’s care and support plan on 25 November, but made no change to the care being provided. The updated plan emphasised the need for the care workers to arrive on time, so a family member would be available to support them. The cost of the care package reduced to £154.61 a week. But the Council started charging Mr Y £309.23 a week in November when it changed its policy and started charging for both care workers on double handed calls.

2021

20. The Council has no records from 2021. It continued to charge £309.23 a week, but in September and October the charges were lower. It is not clear whether that was due to a change in the care package or a period of time away from home.

2022

21. The Council took no other action until October 2022, when an officer asked a colleague if Mr Y had been financially assessed, as he had been receiving care “for some time”. As Mr Y had been assessed in April 2022 as a full cost payer because he had not returned a financial assessment, the officer said they would discuss the issue when reviewing Mr Y’s care needs.
22. The Council called Ms X on 31 October about reviewing her father’s needs, as she had asked about direct payments.
23. By 1 November, the Council calculated Mr Y owed £32,813.32 in arrears.
24. On 2 November the Council told Mr Y’s son it could not transfer his father’s package of care to direct payments, because of the outstanding debt. The son said he did not know who was managing his father’s money, but would speak to the family and call back. The Council sent a warning letter, giving 14 days to pay the outstanding debt.
25. On 3 November the Council sent another financial assessment form to Mr Y.
26. On 8 November the Council reviewed Mr Y’s care package. In confirmed it could not provide direct payment because of the arrears, unless they agreed an arrangement to repay the arrears. Mr Y’s son said they could not pay the arrears within 14 days but said he would discuss them with other family members and get back to the Council. He said they had not been asked to complete a financial assessment but said they would fill one in.
27. Ms X says around this time her father became more confused and less mobile, due to Alzheimer's disease. But this was not reflected in the Council’s records.
28. When the Council called Mr Y’s son on 18 November, he said his father had returned home from hospital and was now receiving palliative care. He said they wanted to change care provider. The Council agreed to call again on 21 November to discuss this. There is no record of a further call. Although the Council cancelled the contract with the care provider in January, it did not arrange for the family’s chosen care provider to take over the package of care. Ms X says Mr Y stopped receiving support from the Council’s care provider in November.
29. The Council referred the unpaid charges to a private firm of solicitors in December.

2023

30. On 9 March the solicitors wrote to Mr Y about the outstanding charges, which then amounted to £32,818.32. They asked him to set out by 23 March how he proposed to pay the full debt. They said a failure to respond was likely to result in commencing the pre-action protocol as a pre-cursor to taking legal proceedings against him. They said the Council was doing all it could to prevent that from happening but if it became “necessary to start the pre-action process our client will seek to recover statutory interest on the debt owed as well as the full legal costs they incur”.
31. The solicitors wrote again on 27 April. They said the debt now amounted to £36,351.62 and they understood the Council had posted invoices to Mr Y, which should have been received. They said the Council planned to recover its interest and costs incurred because of non-payment, under section 69 of the Care Act 2014. They said the interest amounted to £4,017.87 and would continue to increase by £7.39 a day at the statutory rate of 8%. They said any payments would reduce the daily rate. They also said the Council’s legal costs were currently £893.
32. The solicitors wrote again on 9 June. They said the debt now amounted to £42,024.37, which included £4,361.75 in interest and £1,311 in legal costs.
33. Mr Y died in June. Ms X and her brother were executors for his will.
34. On 21 July Ms X contacted the solicitors about the outstanding debt. She agreed to pay the debt from her father’s estate and on that basis the solicitors agreed to freeze the interest charges from that date. Ms X paid the debt on 22 August. This comprised £36,351.62 in unpaid care charges, £1,786 in legal costs and £4,697.64 in interest payments.
35. Ms X complained to the Council on 1 October 2023. When the Council replied to her complaint on 12 January 2024, it said:
• On 25 March 2020 it gave Mr Y a leaflet about care charges, and provided this to two other members of the family.
• After receiving six weeks of free care, Mr Y’s care package was chargeable.
• It sent financial assessment form but, as these were not returned, it charged Mr Y the full cost of his care.
• On 2 November 2022 a social worker spoke to Mr Y’s son about the arrears, and he promised to speak to the family about how to address the arrears, but no contact was made with the finance department about this.
• Ms X contacted the finance department on 21 July 2023 and at that point the interest was frozen. It didn’t do that before then as no contact had been made and no plan drawn up to pay the arrears, which had been referred to solicitors.
• It understood the final bill of £42,835.26 had been paid in full, after the solicitors told Ms X it needed paying 23 August 2023.
• It was looking at its financial processes to try and ensure invoices were dealt with in a timely manner.
36. Ms X was not satisfied with the Council’s response, so took her complaint to stage two of its complaints process on 4 February. Ms X contacted the Ombudsman in June, as she had not heard from the Council.
37. When the Council replied on 9 August, it said:
• It apologised for the delay in responding.
• It had agreed to freeze the interest charges on 21 July 2023 on the basis the outstanding debt would be paid by 23 August 2023.
• As a gesture of goodwill it offered to pay Ms X £300 for the distress the process had caused
38. The Council says it does not have a policy on charging interest and legal/administrative fees on overdue charges for adult social care. It says it refers debts to the solicitors to progress debt recovery on its behalf. It says the legal basis for charging interest relates to Section 69 of the County Court Act 1984. It says:
• “That statutory provision allows a claimant when making a claim to seek the award of statutory interest on an unpaid debt. As such when seeking payment of the debt interest is sought on the basis that where a claim is made our debt collection service would seek payment of statutory interest which the court would be granted at the current statutory rate at 8% per annum. On this case the matter was settled prior to a claim being necessary. However, the Council would have been entitled to issue a claim at any time and sought interest. If we had done so the cost of action would have considerably increased to include the court fee for issuing. As such where a resolution can be achieved without having to issue a claim which includes the interest and accrued interest that option is pursued.”

Is there evidence of fault by the Council which caused injustice?

39. The Council failed to deal properly with the charges for Mr Y’s care as:
• It failed to communicate with him about the charges for his care until late 2022, by which time there was a significant debt, Mr Y had dementia and his family did not have access to his money as he had not appointed a power of attorney;
• It charged interest and the cost of passing the debt on to solicitors, without having a policy to do this; and
• It failed to respond to Ms X’s stage two complaint, until prompted to do so by the Ombudsman.

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Agreed action

40. When a council commissions or arranges for another organisation to provide services, we treat actions taken by or on behalf of that organisation as actions taken on behalf of the council and in the exercise of the council’s functions. Where we find fault with the actions of the service provider, we can make recommendations to the council alone. Here we have found fault with the actions of the Council and the solicitors, and make the following recommendations to the Council.
41. I recommend the Council:
• Within four weeks:
1. writes to Ms X apologising for the failure to deal properly with her father’s care charges and for the time and trouble she has been put to in pursuing the complaint;
2. Pays Ms X £300, if it has not already done so;
3. Refunds the interest and the legal charges Mr Y’s estate has paid;
4. Identifies the action it is going to take to ensure it communicates with people about the charges for their care;
• Within six months:
1. introduces policies and procedures on charging legal costs and interest on unpaid care charges.
42. The Council has agreed to do this. It should provide us with evidence it has complied with the above actions.

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Final decision

43. I have completed my investigation on the basis there has been fault causing injustice which requires a remedy. The Council has agreed to take action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman