Summary: There was a long delay in the Council issuing an invoice for care provided at home to Mrs C and this was fault. The agency that provided the care also often did not provide Mrs C with a wash, the care visits were short and the care plan should have been reviewed sooner. The Council has agreed to apologise, provide a financial remedy, carry out a review financial assessment and carry out service improvements.

The complaint

1. Mr B complains on behalf of his mother-in-law, Mrs C. He says there was a delay in the Council sending an invoice for care charges. He also complains about the care provided by Oath Healthcare, the care agency that provided the care and the length of time the care workers stayed during care visits.

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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)

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How I considered this complaint

4. I have spoken to Mr B. I have considered the evidence provided by him and the Council, the relevant law, policy and guidance and both sides’ comments on the draft decision.

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What I found

5. The Care Act 2014, the Care and Support Statutory Guidance 2014 and the Care and 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. The Council also has its own policies.

Assessment, care plan and personal budget

6. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs and a personal budget which sets out the costs to meet the needs.

Financial assessment

7. Councils must carry out a financial assessment if they decide to charge for the care and support. This will assess the person’s capital and income.
8. Generally speaking, if a person has capital over £23,250, they will have to fund their own care. Those with capital between the upper and the lower limit will make a contribution known as ‘tariff income’ from their capital.
9. If a person’s capital is below £23,250, they may still need to make a contribution from their income towards the cost of the care package.
10. The Care Act and the CASS Guidance do not specify a timescale when the financial assessment should be completed. However, the Ombudsman considers it is good practice for the financial assessment to be completed around the same time as the care plan so that people know what their contribution from their income will be towards the cost of the care and can make informed decisions about which care package to choose.

Care Quality Commission

11. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers that meet the fundamental standards of care, inspects care services, and reports its findings. It can also enforce against breaches of fundamental care standards and prosecute offences.
12. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The CQC has guidance on how to meet the fundamental standards. The guidance says:
13. Regulation 9 says:
• Providers must do everything reasonably practicable to make sure that people who use the service receive person-centred care and treatment that is appropriate, meets their needs and reflects their personal preferences.
• This does not mean that care and treatment should be given if it would act against the consent of the person using the service.
• Assessments should be reviewed regularly and whenever needed throughout the person's care and treatment.  Reviews should make sure that people's goals or plans are being met and are still relevant.

What happened

14. Mrs C is an older woman who was living at home with her husband Mr C. Mrs C was admitted to hospital in February 2023 following a fall.

Assessment – February 2023

15. The Council’s social worker assessed Mrs C’s needs for care and support on 20 February 2023 and said Mrs C needed a package of support at home consisting of 30-minute visits 4 times a day, when she was discharged from hospital.
16. The care plan was:
• Morning call. Assist Mrs C out of bed, assist her to the toilet. Assist/supervise a wash or shower and getting dressed. Supervise Mrs C going downstairs. Prepare breakfast and a hot drink. Administer medication and fill in the chart. Prepare drink for the morning.
• Lunch call. Heat up meal, provide a drink. Supervise mobilising to the commode, administer medication. Prepare drink for the afternoon.
• Tea call. Prepare snack and drink. Supervise mobilising to the commode, administer medication. Prepare drink for early evening.
• Evening call. Supervise mobilising to the toilet, supervise climbing the stairs, prepare the bed, administer medication.
17. Care workers also washed the dishes, tidied the kitchen, changed the bed and emptied the bins.
18. The social worker spoke to Mrs B on 20 February 2023 to discuss the finances. Mrs B told the social worker that Mrs C’s capital was below the threshold of £23,250 which meant she would be eligible for a council funded care package. The social worker explained the process of the financial assessment to Mrs B as this would determine what contribution Mrs C would have to make from her income.
19. The Council sent the financial assessment form to Mrs B on 24 February 2023.
20. Mr B sent the financial assessment form by email on 13 March 2023 and told the Council that Mrs C had capital over £23,250.
21. The social worker visited Mrs C for a review of the care plan on 31 March 2023. Mr C and Mrs B were present at the visit. The family informed the social worker that the plan was for Mr and Mrs C to move to sheltered housing on 23 April 2023. The note of the visit said:
• ‘Current calls working well. [Mrs B] wishes for current agency (Oath Care Agency) to continue providing care in [sheltered housing]… ‘
• Savings below capital limit of £23,250. Family advised that if financial assessment questionnaire is not completed and returned, [Mrs C] will be required to pay for the full cost of her care.’
22. The Council wrote to Mrs B and Mrs C on 5 July 2024 and informed them that, as Mrs C’s capital was over £23,250, she was a self-funder and would have to pay the full cost of her care package. The outstanding debt to the Council was £21,263.
23. Mr B complained about the invoice he received from the Council and the care provided by the Agency. The Council organised a meeting between the Agency, the Council and Mr B which took place on 18 September 2024.

Mr B’s complaint – 25 September 2024

24. Mr B complained to the Council on 25 September 2024. Mr B said he had verbally complained to the Agency about the care in the past. Mr B said:
• The Council never told Mrs C or the family that Mrs C would have to pay for the care package. The family was not aware that the care was chargeable until August 2024 when they received a large invoice. This was a huge shock.
• Mrs B sent the financial assessment form back on 12 March 2023 but received no reply from the Council. He questioned why the Council took no action for 18 months regarding the assessment.
• He complained about the care provided by the Agency. He said the care workers often did not stay for the full 30 minutes during a visit.
• The Agency often did not complete personal care tasks, did not offer or leave lunch for Mrs C and did not empty the bins.
• The Agency’s attitude during the meeting on 18 September 2024 was poor. The Agency said that it had been paid so the invoices had ‘nothing to do with us.’
• He wanted the Council to cancel the invoices as the family had not been informed that invoices would be sent and the care was exceptionally poor.

Council’s response – 21 October 2024

25. The Council responded to Mr B’s complaint and said:
• The Council informed Mrs B on 20 February 2023 of the threshold of £23,250 to be eligible for Council funding. Mrs B said Mrs C had savings below the threshold so the Council informed her of the financial assessment process which would determine what contribution Mrs C would make from her income.
• The Council sent the financial assessment form on 24 February 2024 and did not receive it back. The Council sent a reminder on 13 March 2024 asking the family to return the form. The Council did not receive a response. The Council admitted it should have sent an invoice at that time but said it did not ‘like’ making this decision so it allowed extra time.
• The Council reviewed outstanding cases in June 2024 and then realised there had not been a financial assessment and chased Mrs B for the form. Mrs B returned the form ticking the box that Mrs C had savings over the threshold. The Council then sent the invoice.
• The Council apologised for the delay in sending the invoice.
• In terms of the care, the Council said there had been ‘an incredibly high number of refusals’ where personal care or meals were refused.
• The Agency should have outlined the reason why the task was declined and by whom and should have raised with the family that there was a frequent pattern on Mrs B refusing care.
• The Council agreed that the care workers did not always stay for 30 minutes but said this was mostly at the request of Mr and Mrs C. The Agency should have raised this with the family when it became a pattern.
• In terms of the complaint about the bins, the Council said there had been an agreement that the bins would only be emptied if they were more than half full, but this became a problem when continence items were put in the bin discreetly. The Council said this had been discussed at a meeting in August 2024 and addressed by including this task as a separate task.
• In response to the complaint about the Agency’s attitude at the meeting in September, the Council said it apologised for ‘any appearance of poor attitude. This is not something the Council would expect from our approved providers and not something Oath Healthcare should leave their customers feeling.’ The Council had formally advised the Agency that this was not acceptable.
• The Council did not agree to cancel the debt as it said the family were informed of the charging and financial assessment process. It acknowledged that care tasks were not always completed and visits were short but this was consistently at the request of Mr and Mrs C.

Further developments

26. Mr B had a meeting with the Council on 28 October 2024 and offered to pay 50% of the outstanding debt. Mr B said he was not satisfied with the Council’s response to the complaint.
27. The Council sent a further response to the complaint which was essentially the same response as before. However, the Council offered to deduct £1,500 from the outstanding debt because of the delay in sending the invoice.
28. On 5 December 2024 Mr B offered to pay £5,000 to reduce some of the outstanding debt.

The Agency’s records

29. The Agency keeps a detailed electronic record which records the time when a person logs in and the time when a person logs out. The record also shows where the person is when they log in and out. On occasions where a care worker has forgotten to log out and does so later, it shows that their location is not at the home where they logged in so the length of those visits can be ignored.
30. I have received all the care records and have looked at a random sample for the first two weeks of October. This showed that the care workers carried out the necessary tasks during the morning visits. Mrs C received a full body wash or had a shower on 12 mornings out of the 14 mornings I looked at. The care worker also helped Mrs C get dressed, helped in personal care and provided breakfast and a hot drink. The care workers stayed around 30 minutes during the morning visit almost every day.
31. The lunch time and afternoon visits were not so well used. I noted that the care worker always offered to prepare a meal or a drink at the visits, but this was declined by Mr and Mrs C as they often said they had already eaten. The care worker rarely stayed for the full 30 minutes as there was not enough for them to do.
32. The evening visit was well used. The care workers assisted Mrs C in getting ready for bed and gave her medication. However, I noted that Mrs C always declined a second body wash, and the care workers often did not offer it. Although the care workers did not always stay the full 30 minutes during these visits, they performed the tasks (apart from the second body wash) that were allocated but the tasks sometimes took less time than 30 minutes.
33. I have also considered the first two weeks in November and these showed that the care workers offered Mrs C a wash but that she often refused it. The care workers gave Mrs C a wash on 2, 7 and 8 November. On 12 November she was assisted with personal care.
34. Mr B also sent me a spreadsheet as he had calculated the length of visits from 9 to 31 August 2023 (23 days). He added up the time of all the visits and noted that the total should be 2640 minutes, but the care workers only stayed for 2087 minutes.

Further information

35. Mr B has provided his response to the draft decision and says the family did not inform the social worker on 20 February 2023 that Mrs C’s capital was below the threshold.

Analysis

36. The family was informed that, if Mrs C had capital over £23,250, she would have to self-fund her care package. So I agree with the Council that the family was informed of the funding regime and the process. The family would have known, once they discovered that Mrs C’s capital was above £23,250 that Mrs C was a self-funder and would have to pay the full cost of her care package, although I accept that they would not have known what the actual cost was.
37. Mr B has sent evidence which shows that Mrs B sent the financial assessment to the Council on 13 March 2023 and informed the Council that Mrs C’s capital was over £23,250. I accept that the Council may not have received the email. I note, for example that the social worker told Mrs B and Mrs C during her visit on 31 March 2023 that they should return the financial assessment, so this suggests the Council had not received the form at this stage.
38. Nevertheless, whether the Council received the financial assessment or not, it should have acted in March 2023 and failed to do so. Its failure to do so was fault. The Council says it wanted to give Mrs B some further time to send in the information, but I cannot see any evidence that the Council ever chased Mrs B for the information or reminded her that the financial assessment was overdue. As far as I can see, the Council forgot about Mrs C’s financial assessment. A delay of 16 months to send an invoice cannot be excused. It is fault.
39. I have also considered Mr B’s complaints about the care provided by the Agency and the length of time the Agency stayed during the calls.
40. Generally speaking, we would not expect care workers to work exactly 30 minutes at each visit. Sometimes the tasks take longer and sometimes shorter but we would expect that, on average, the care workers stayed for 30 minutes. Also, I appreciate that some agencies set 30 minutes as the minimum time for a care visit as it is not economically viable to set a shorter time, particularly as care workers’ travel to the location is often not included in the payment of a care visit.
41. It is not in dispute that the care workers did not stay the full 30 minutes during many visits.
42. In the records I considered, the care workers always offered Mrs C a wash in the morning, but she often refused this. The carers always offered a meal, a snack or a drink during the lunch and afternoon visit, but that this was often refused. The care workers carried out most of the tasks in the evening so this visit was well used although Mrs C refused a second wash and this was often not offered.
43. So it appears the care workers offered the care that was set out in the care plan, but Mrs C often refused the care, particularly in relation to a wash or a meal or Mrs C did not need it at that time.
44. So Mrs C may not have received all the care that she needed, for example in terms of washing and nutrition and I agree that the Agency should have raised this much sooner.
45. And more generally, the Agency should have alerted the family and the Council about the fact that there was often little for the care workers to do and they ended the visits early. The failure to inform the family and the Council was fault.
46. The Council had initially written the care plan and had commissioned the care package so the Council should have been informed that the Agency was not providing the care set out in the care plan. This meant Mrs C was at risk of not receiving the care she needed or it meant that public money was being spent on a care plan that was not necessary.
47. The Agency must have known, for months, that there were frequent refusals during the visits and that the Agency was often being paid for very short visits where hardly any care or no care was provided. The Agency’s failure to alert the Council and the family to this problem was fault.
48. Also the Agency had a duty to regularly review the care plan, particularly in a case such as this one, where the care plan needed to be changed to better reflect what Mrs C needed. The Agency’s failure to review the care plan was fault.
49. The Council has already commented on the Agency’s communications during the meeting on 18 September 2024 and has formally advised the Agency that its communication was not acceptable. I cannot add anything further in respect of that complaint.

Injustice and remedy

50. The Ombudsman’s approach to remedy is that we determine, firstly, if there was fault, then decide whether this caused an injustice to the people involved and, if there was injustice, how this can be remedied. The aim of the remedy is to put the person in the position they would have been if the fault had not happened.
51. In terms of injustice, I asked Mr B what he would have done differently if he had received the Council’s invoice earlier or had known about the short visits. He said the family may have changed agencies.
52. And, although it is difficult to speculate, it is also possible that, if the family or the Council had been informed earlier about the short / unnecessary visits and the refusal of care, the Council or the family may have amended the care package. So the injustice is the uncertainty of what actions the family and the Council would have taken if the invoice had been sent earlier or if they had been made aware earlier of the short / unnecessary visits.
53. I note that the Council offered to deduct £1,500 from the invoice at the time to reflect the injustice. This was in line with what the Ombudsman would have recommended.
54. There have been further developments since that time. Mrs C moved into a care home in August 2024 and has been paying her care home fees privately which means that her capital has now almost reduced to £23,250. The Council’s invoice of £21,263 has not been paid. If Mrs C had paid the invoice of £21,263, she may have been eligible for Council funding earlier.
55. I asked the Council how it would assess when Mrs C became eligible for funding (if she had paid the outstanding debt) and whether this affected the outstanding debt.
56. The Council said it would carry out a threshold assessment. This assessment would consider any debt outstanding to the Council and any payments that have already been made to determine if, and when, the Council will commence funding (when funds fall below £23,250). This could be a date in the future or in the past, depending on the outcome. Once the assessment was completed, Mrs C’s account would be reconciled, and a statement of account would be provided. The Financial Assessment could then say what the outstanding debt is.
57. My understanding of this response is that the Council will deduct the outstanding debt from Mrs C’s capital in its threshold assessment and then decide what the outstanding debt is. This is a sensible way forward. There seems little point in Mrs C paying an outstanding debt for the Council then to have to possibly repay it.

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Action

58. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise in writing for the fault that has been identified.
• Deduct £1,500 from the invoice as previously agreed.
• Remind relevant Council officers of the importance of carrying out financial assessments at the same time as the care plan is being prepared.
• Remind the Agency of its duty to review the care plan regularly and its duty to inform any relevant parties if care is not being provided as set out in the care plan.
59. The Council has agreed to take the following actions within 6 weeks of the final decision and on the condition that all the required client information has been received by that time. The Council will:
• Carry out a threshold assessment as set out in paragraph 57 and inform Mr and Mrs B what, if any, the balance is of Mrs C’s outstanding debt to the Council.

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Decision

60. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman