Summary: Mr X complained the Council gave misleading information about care costs, delayed sending invoices and allowed a debt to increase. He also complained about delay in responding to his complaint and the Council reporting concerns to the Office of the Public Guardian. The Council correctly notified another lasting power of attorney about the costs and sent regular invoices and reminders. It has apologised for the delay in responding to Mr X’s complaint which is a suitable remedy.

The complaint

1. Mr X, on behalf of his aunt, Mrs Z, complains the Council gave misleading information about care costs, delayed sending invoices and allowed a debt to increase. He also complains the Council delayed responding to a complaint about this but reported the failure to pay the invoices to the Office of the Public Guardian.
2. Mr X says this has caused stress to himself and the other LPA’s and is likely to impact on the care his aunt receives.

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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. 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(1), as amended)

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How I considered this complaint

5. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Charging for social care services: the power to charge

7. 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)

Assessing finances

8. 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. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.
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. Councils’ financial assessments can take a person’s income and capital into consideration, but not the value of their home. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by national government and reviewed each year. A council can allow people to keep more than the MIG. (Care Act 2014)

Disability Related Expenditure

10. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. The Care and Support Statutory Guidance sets out a list of examples of such expenditure. It says any reasonable additional costs directly related to a person's disability should be included. What counts as DRE should not be limited to what is necessary for care and support. For example, above average heating costs should be considered.

Lasting Power of Attorney

11. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
12. There are two types of LPA.

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

13. An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.

Key facts

14. This section sets out the key events in this case and is not intended to be a detailed chronology.
15. Mr X along with two other relatives, Ms A and Mr B, holds the lasting power of attorney (LPA) for his aunt Mrs Z. Mrs Z has received a package of care for several years commissioned by the Council. Mrs Z paid the full cost of the care until 2023 when her savings fell below the threshold.
16. There is evidence of a telephone call in January 2021 from the Council to Mr X. The Council explained that Mrs Z was a few months in arrears to the day centre she attended and that if this was not paid then she would not be accepted into the centre. The notes state that Ms A manages the payments and Mr X said he was surprised about this. The Council explained that Mr X, along with Ms A and Mr B were in breach of their duties as LPAs.
17. In January 2023 the Council wrote to Ms A sending details of Mrs Z account and stating there were arrears of £4,402.53. It noted that invoices and reminder letters had been sent regularly. It asked Ms A to make a payment to bring the account up to date and suggested a standing order could be set up for the ongoing payments. The evidence shows no payments have been made since October 2022.
18. A meeting took place in January 2023 with the Council. All three LPAs were in attendance. Notes of the meeting show discussions took place about the care Mrs Z required and who would provide it. All LPA’s agreed the proposed care package to start on 23 January. The notes indicate a discussion took place about the current care received by Mrs Z. This was a private arrangement organised by the LPAs and paid for by Mrs Z for a full time live in carer. The notes say that Ms A was asked about the cost and Mrs Z’s finances and that Ms A was not clear. The notes do not provide any information to show that the cost of the new care package for Mrs Z was discussed.
19. Financial information was provided by Mr X and Ms A in 2023 resulting in a new financial assessment in November 2023. The Council wrote to Ms A explaining the cost of the care package was £1153.63 and Mrs Z’s contribution was £37.31 per week from 15 May. Included was a breakdown of how the financial assessment had been reached. It said that it would normally send an invoice every four weeks and said a direct debit form could be provided to make payments. It provided a phone number and email address for any enquiries. There is no evidence to suggest Ms A or the other LPAs raised any queries with the Council about this assessment.
20. The Council sent a further letter to Ms A on 11 December 2023 saying there was a change in the amount Mrs Z was required to pay to £88.93 each week. The attached breakdown showed the increase in the charge was as a result of how the Council had calculated the disability related expenditure. Again the Council provided a telephone number and said to contact it if Ms A considered there were any errors. There is no evidence to suggest Ms A or the other LPAs raised any queries about the assessment.
21. The Council emailed Ms A on 27 February 2024. It said that since the reassessment in December 2023 it had not received any payments towards Mrs Z’s care and support charges. It said that £15,822.54 was now due and said it could provide copies of any invoices. It explained that if arrears could not be made in one payment, that it could offer a repayment plan and invited Ms A to contact it if she wanted to discuss the account. There is no evidence any contact or payment was made.
22. In September 2024, Mr X emailed the Council about the arrears. He said that Ms A had recently received a letter requesting payment of £18,132.75 for Mrs Z’s care. He said that neither him or Ms A could recall being told that an ongoing payment would be required. He also said that he was unable to find any letter or email stating payment was required on an ongoing basis when the care plan was devised in 2023. He asked why the Council was demanding payment and had left it 18 months to chase payment.
23. The Council replied on 30 September, copying in Ms A. It provided a brief history of Mrs Z’s involvement with adult social care and how much it had charged for the care received. It said correspondence had been sent to Ms A each year to advise of the charges and changes. It said the accrued debt needed to be responded to urgently and advised Mr X to contact the debt team to discuss a payment plan to start clearing the debt.
24. Mr X made a formal complaint to the Council in November 2024. He said the demand sent in August was the first time he was aware a debt existed. He said that during the care planning process in 2023 the LPAs were under the impression that Mrs Z's care would be funded by the Council as her savings were below £23,000. He asked why it had not been made clear that her savings would need to part fund the care and asked why this was not formalised in writing. Mr X continued saying that they had not received invoices or been told money was owed until August 2024. He asked the Council to review the amount owed.
25. The Council did not respond to this complaint until May 2025. It apologised for the delay in responding. It said there was nothing on record to indicate the Council had told the LPAs Mrs Z was not required to pay for her care. It said Mr X had signed the financial declaration acknowledging he understood that services arranged are subject to a charge and he agreed to pay any assessed charges. It said the outcome of the financial assessment in 2023 was notified to Ms A by letter and that invoices were also sent to Ms A’s home address. It said there was evidence on file of numerous attempts to contact Ms A, LPA, by email, post and telephone to discuss the arrears and unpaid invoices.
26. The complaint response said that after unsuccessful attempts to contact Ms A, it referred the case to its debt recovery team and advised Mr X to contact it to discuss a repayment plan. It apologised if there had been any misunderstanding that led Mr X to believe that fully funded care meant no charges for Mrs Z.
27. The Council raised a concern with the Office of the Public Guardian about the three LPAs and their failure to pay the assessed charge for Mrs Z. It said it was exploring legal routes regarding the debt. It is my understanding the OPG is still investigating the report.

Analysis

28. Mr X says that he was given misleading information about care charges for Mrs Z and that the Council delayed sending invoices and allowed a large debt to accrue. When Mrs Z was first receiving a package of care arranged by the Council, she had savings above the threshold and so was required to pay the full cost of the care. The evidence provided shows that regular payments were made until October 2022.
29. There is information which shows the Council told Ms A that she should let it know when Mrs Z’s savings fell below the threshold and it would complete a financial assessment. The information I have seen does not indicate the Council gave any further explanation of how charging worked. There is nothing to say the Council gave information to say it would pay the full cost or that Mrs Z would be required to make a contribution based on her income and level of savings.
30. Once the financial assessment was completed in November 2023, the Council wrote to Ms A with a copy of the calculation and the amount of Mrs Z’s weekly contribution. There was clear information explaining what to do if Ms A considered it was incorrect or she had any queries. Ms A never raised any queries about the assessment. Following this regular reminders and invoices were sent to Ms A but she did not make any payments. I am therefore satisfied the Council did provide information about the cost of the care package before August 2024; that it sent regular invoices and that it raised this issue of the increasing arrears.
31. I acknowledge that the Council was only corresponding with Ms A and not Mr X or Mr B. I do not consider this is fault. All three held the LPA for Mrs Z and they were not required to make joint decisions. There is nothing to suggest that requests were made to send correspondence to them all. There is also nothing to suggest any difficulties in the relationships between the three LPAs. It is my understanding that Mr X did not live locally to Mrs Z and that he relied on Ms A to take the lead on many of the care and financial issues.
32. I consider that it would have been helpful if the Council had provided general information about care charges at the care planning meeting in January 2023. However, there is no evidence the Council provided misleading information about care charges. The Council sent clear information to Ms A about the calculations, the weekly charge and how to pay. It does not appear Ms A shared this with Mr X but this does not amount to fault by the Council.
33. The Council did delay responding to Mr X’s complaint which is fault. It has apologised for this which I consider is a suitable remedy for any frustration caused. The Council did report concerns to the OPG about the lack of action by the LPAs. This is a matter of judgement for the Council and so not something I will criticise. Any action taken by the OPG is outside the Ombudsman’s jurisdiction and so I will not comment further.
34. Based on the evidence provided so far, I find no unremedied fault by the Council. The care charges were correctly assessed and notified. The Council sent regular invoices and reminders. It did not delay pursuing the arrears and there is no fault in referring concerns to the OPG. The delay in responding to Mr X’s complaint has been appropriately remedied by way of an apology.

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Final decision

35. My decision is that the complaint will not be pursued further.

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Investigator's decision on behalf of the Ombudsman