Summary: Mr X complained the Council charged the late Mrs Y for respite care after telling the family it would be free. He also complained Mrs Y spent longer than planned in respite care due to the Council’s poor communication and management of the case. This caused the family distress. We found the Council at fault for failing to provide clear and timely information about charges for Mrs Y’s respite care. But we did not find the Council at fault over the time Mrs Y spent in respite. The Council agreed to apologise and make a symbolic payment for the distress caused.

The complaint

1. Mr X complained the Council charged the late Mrs Y over £1,000 for her respite care despite initially telling the family it would be free because it was an emergency.
2. Mr X also complained Mrs Y spent longer than planned in respite care due to the Council’s poor communication and poor management of the case.
3. This caused the family distress.

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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 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)
5. 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

6. As part of the investigation, I considered the complaint and the information Mr X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. Mr X and the Council 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

Charging for permanent residential care

9. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
10. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
11. Alongside this, councils should ensure there is sufficient information and advice available in a suitable format for the person’s needs, in line with the Equality Act 2010 (in particular for those with a sensory impairment, with learning disabilities or for whom English is not their first language), to ensure that they or their representative are able to understand any contributions they are asked to make. (Care and Support Statutory Guidance, paragraph 8.3)
12. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.

Temporary residential care

13. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period, such as respite care, or there is doubt a permanent admission is required. The person’s stay should be unlikely to exceed 52 weeks. A decision to treat a person as a temporary resident must be agreed with the person and/or their representative and written into their care plan.
14. A council can choose whether to charge a person where it is arranging to meet their needs. In the case of a short-term resident in a care home, councils have discretion to assess and charge as if the person were having their needs met other than by providing accommodation in a care home. Once a council has decided to charge a person, and it has been agreed they are a temporary resident, it must complete the financial assessment in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance.

What happened

15. I have summarised below some key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
16. Mrs Y had care and support needs. Carers would visit her home twice a day. She paid for a morning visit privately and the Council commissioned an afternoon visit.
17. Mrs Y’s daughter contacted the Council in early December 2023 to report a psychotic episode. Mrs Y’s doctor suspected she had an infection.
18. Mr X spoke to a duty social worker on 22 December 2023 after a neighbour found Mrs Y outside her home at 5am carrying a bag. Mrs Y was paranoid, thinking she was being evicted. Mr X said Mrs Y’s family could not look after her over Christmas, but she could be persuaded to move temporarily to somewhere with 24-hour care.
19. The duty social worker conducted a mental capacity assessment for Mrs Y to make a best interest decision. They concluded Mrs Y lacked capacity to decide where she lived, and the least restrictive option was to move her to a care home, because her family could not stay with her to prevent her leaving the house unaccompanied.
20. The Council consulted care homes and agreed a two-week placement at a rate of £1,150 per week.
21. Another duty social worker spoke to Mr X on 27 December to see if Mrs Y could return home. Both Mr X and Mrs Y’s daughter felt it was not safe for Mrs Y to go home yet. They told me this was due to a COVID-19 outbreak at the care home. They told the Council they were exploring community support options for Mrs Y’s delirium and paranoia, and her doctor had made a referral to mental health services.
22. Mrs Y’s regular social worker spoke to the family on 2 January 2024. The family wanted Mrs Y to return home when it was safe to do so.
23. Mrs Y’s social worker then spoke to the care home. The care home confirmed Mrs Y was not hallucinating or showing paranoia. She had completed a course of antibiotics, and the infection had cleared.
24. Mrs Y’s social worker noted Mrs Y was still waiting for a mental health assessment following the doctor’s referral. She was also receiving treatment at the care home from district nurses due to a pre-existing pressure sore. Prior to residential care, Mrs Y received two calls per day (morning and teatime). The social worker therefore sought to extend Mrs Y’s stay in respite care by a further two weeks, until 19 January, to re-assess her needs and increase her care package. This included a referral for assistive technology so the family could monitor Mrs Y’s whereabouts and reduce the risk of her wandering.
25. Mrs Y’s daughter spoke to Mrs Y’s social worker on 11 January 2024. She confirmed they had an appointment to discuss assistive technology, and Mrs Y was due to have a mental health assessment.
26. Mr X then told Mrs Y’s social worker the family had agreed installation of a door sensor and Global Positioning System (GPS) tracker. However, Mrs Y’s home did not have an internet connection, and the earliest installation date was 29 January. Mrs Y’s social worker said they would arrange an extension of Mrs Y's respite care by a further two weeks.
27. The Council extended Mrs Y’s respite care again on 1 February as it had not yet found a care provider for an increased care package.
28. Mrs Y’s social worker spoke to Mr X on 6 February 2024. Mr X confirmed Mrs Y returned home on 5 February and the care provider had started care. He also said assistive technology was set up.
29. The Council’s financial assessment team wrote to Mrs Y’s family on 14 February 2024. It said it calculated Mrs Y’s contribution for her stay at the care home was £172.80 per week. This was based on Mrs Y receiving the lowest amount of weekly income, but it needed more information to do a full financial assessment. It asked the family to complete a financial assessment form.
30. Mr X returned the completed financial assessment form on 27 February.
31. The care home wrote to Mrs Y’s family on 18 April with an invoice of £1,110.86.
32. Mr X spoke to Mrs Y’s social worker again in April and May 2024 about invoices the family received from the care home. He said the family was prepared to pay what they are required to, as long as they have clarity on what they are paying for. Mrs Y’s social worker said they would contact the Council’s finance team for clarification.
33. Mr X emailed the Council’s complaints team on 20 April 2024, as he no longer wished to correspond with the finance team. He said Mrs Y went into respite care for two weeks, which was extended due to issues beyond their control. He said the family was receiving invoices that are panicking them, and they want it to stop.
34. On 14 May, Mr X said the Council failed at every stage and caused the family undue stress and anxiety.
35. The Council sent its stage one complaint response on 13 June. It said anyone receiving Council funded care will be asked about their financial circumstances to work out how much they will need to pay. It acknowledged Mr X returned the financial assessment form in February but, due to an oversight, the Council did not complete a full financial assessment. It said, based on the information Mr X provided, Mrs Y’s contribution would be higher than the £172.80 a week it charged. However, because of the Council’s oversight it would not do a full financial assessment. It confirmed the amount outstanding was £1,110.86.
36. Mr X said the care home’s costs were so high because Mrs Y stayed longer than the planned two weeks. He said this was because the Council could not sort out Mrs Y’s care plan. He also said the Council told the family it would pay for Mrs Y’s respite care because it was an emergency.
37. Mr X said the family identified a care provider straight away who could meet Mrs Y’s increased needs, but the Council said it was not on its approved list. It then took the Council weeks to finalise a care package.
38. The Council sent its final complaint response on 14 August 2024. It acknowledged Mrs Y went into respite care at short notice, but said it still collected client contributions as normal. It said it extended Mrs Y’s respite care over Christmas as care providers had less capacity to set up new packages. There was another extension to set up a telecare package. It acknowledged it took time to find a care provider, and apologised for the delay.

My investigation

39. Mr X told me Mrs Y received care in her home for several years and funded a percentage of this. She went into respite care as she had delirium and was leaving her home in the early hours. The family made the request to the Council for her safety and welfare, and this was supported by her doctor.
40. Mr X said a duty social worker arranged respite care and told the family in a telephone call there would be nothing to pay, as it was an emergency. Mr X said this was reinforced by Mrs Y’s regular social worker, who told the family in person and by telephone Mrs Y would not have to pay as it was the Council’s responsibility to arrange respite care in an emergency.
41. By contrast, the Council told us officers informed the family the respite care would be chargeable.
42. I asked the Council if it wrote to the family with confirmation after arranging respite care, or to confirm respite care was chargeable and subject to financial assessment.
43. The Council told me there is no written evidence it provided the family with information after arranging respite care until its finance team sent them a letter (in February 2024).
44. I also asked if the Council had a recording of the telephone call with Mr X about arranging respite care, or if Mrs Y’s social worker could recall what they discussed.
45. The Council did not have a recording of Mr X’s telephone call. Mrs Y’s allocated social worker told me they were on leave when the Council arranged respite care, so Mr X spoke to a duty social worker. The duty social worker could not remember the conversation or whether they discussed Mrs Y’s contribution to the cost of her respite care. Mrs Y’s social worker said they had no recollection of telling the family her respite care was free of charge.

Analysis

46. It is important councils give sufficient information about paying for care at an early stage. This is to enable informed decision making. Where a council is not able to complete a prompt financial assessment it should still give appropriate written general information about the likelihood of needing to make a contribution towards care costs.
47. Mr X believed the Council was arranging respite care free of charge, because it was an emergency. Unfortunately, there is only Mr X’s account of his conversations with the Council as evidence. There are no call recordings, and no case notes detailing any discussion around costs. I found no evidence the Council told Mrs Y’s family that respite care was a chargeable service, or that it was subject to financial assessment.
48. I found the Council’s case notes do confirm the care home’s weekly rate, but there is no evidence the Council communicated this to Mrs Y’s family, or that it told them what Mrs Y’s contribution might be.
49. The Council has a duty to provide clear information about charging and the financial assessment process, in a format service users can understand. It is also important the Council keeps a record of this.
50. The Council’s case notes should be clear that there was a discussion around charging, but they are not. This is fault.
51. The Council also cannot evidence that it wrote to the family at the time it arranged respite, confirming the details and providing information about the financial assessment process. Again, this is fault.
52. If Mrs Y’s family had known about the charges from the outset, they may have tried to make alternative arrangements instead of asking the Council to find a residential placement. However, given the need to safeguard Mrs Y, they may have decided they had no choice but to agree to pay for respite. On the available evidence, I cannot say what decision the family may have made. But the Council’s failure to provide clear charging information meant Mrs Y and her family lost the opportunity to make an informed decision. They also suffered distress when they received an unexpectedly large invoice. This is their injustice.
53. The Council acknowledged there was a delay finding a care provider for Mrs Y’s new package of care. However, on the evidence seen, Mrs Y did not spend longer in respite care due to any significant fault by the Council. Mrs Y’s family told the Council at the first review stage that she was not ready to return home. And she was waiting for a mental health services referral from her doctor. The Council also needed to assess Mrs Y for an increased package of care, so it was safe for her to go home. That included the telecare service to alert Mrs Y’s family if she left the house. This was delayed as Mrs Y did not have internet access, and the service provider could not install the internet straight away, which was out of the Council’s control.
54. The Ombudsman’s approach to remedying injustice caused by fault in the information the Council gave about paying for care, is that we will not normally ask the Council to waive the charges. That is because the person received the care and should expect to make some contribution, unless there is compelling evidence of entirely misleading advice. In this case, Mrs Y contributed to the cost of her normal care, and I found no clear evidence the Council categorically said she would not have to pay for respite care.
55. However, the Council’s failings did cause Mrs Y’s family distress, which it should provide a remedy for.

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Agreed Action

56. Within four weeks of my final decision, the Council should:
• Apologise to Mr X and Mrs Y’s daughter for failing to provide clear charging advice, and for the distress and lost opportunity this caused. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
• Pay Mr X and Mrs Y’s daughter £300 (£150 each) for the distress and uncertainty they suffered.
• Remind staff in its Adult Social Care Service of the importance of providing clear information about charging and the financial assessment process, and of ensuring they record conversations and advice given around this.
57. The Council should provide us with evidence it has complied with the above actions.

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Final Decision

58. I found the Council was at fault for failing to provide clear and timely information about charges for Mrs Y’s respite care. I did not find the Council at fault over the time Mrs Y spent in respite.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman