Summary: Mr X complained about the Council unfairly seeking payment of care costs. We found no fault in the Council seeking payment but there was fault in how it handled the complaint about the care costs. The Council agreed to make a symbolic payment, in addition to the apology it had already given, to address the avoidable time and trouble caused by fault in its complaint handling.

The complaint

1. Mrs Z, for Mr X, said the Council was unreasonably and unfairly seeking payment of outstanding care costs. The disputed costs had left Mr X without the support he needed. And communicating with the Council about the costs had taken much time, was stressful and had adversely affected Mrs Z’s health. Mrs Z wanted the Council to accept the family’s offer to pay 40% of the outstanding costs.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. Where we find fault, we must also consider whether that 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. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended) Here, Mr X consented in writing for Mrs Z to complain on his behalf.
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(1), as amended)

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How I considered this complaint

6. I considered evidence provided by Mrs Z and the Council. I also considered relevant law, policy and guidance. I gave Mrs Z and the Council an opportunity to comment on my draft decision and considered any comments received before making a final decision.

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What I found

Background

Care plans and paying for care

7. The law says must councils to carry out an assessment for adults with an appearance of need for care and support. Any resulting care plan will consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. 
8. The care plan must include a personal budget, which is the money the council has worked out it will cost to meet the person’s care and support needs. A council may charge for non-residential care and, where doing so, must carry out a financial assessment to decide what a person can afford to pay. This may result the council and the person receiving the care and support each meeting part of the personal budget.
9. People may ask to receive the council’s part of their personal budget as a ‘direct payment’ (a monetary payment). This enables people to arrange their own care and support to meet their assessed needs.
10. The law says councils should keep care plans under review. And the Government’s Care and Support Statutory Guidance says plan reviews should take place at least every 12 months. Councils should also review financial assessments each year. Financial reviews usually take place around April, when Department for Works and Pensions (DWP) benefits usually change, for example, to reflect inflation.

The Council’s complaint procedure

11. The Council’s complaint procedure for adult social care says it will take at least 20 working days to reply to a complaint. And, it will let people know if a response will take longer than 20 working days.

What happened

12. Mr X had had a care plan for some years that provided for weekly support from, and personal budget for, a personal assistant. Following a financial assessment, the Council had told Mr X he did not need to contribute towards the cost of his care and support. Mr X and his family had asked for, and received, a direct payment from the Council so they could employ a personal assistant for Mr X. Mr X’s family set up a bank account and the Council started making direct payments into the account. Some account money was used to pay a third party (the Third Party) to provide services related to employing a personal assistant. These arrangements were in place in 2024.
13. By 2024, because of circumstances beyond Mr X’s control, he did not regularly receive all the weekly support set out in his care plan. The Council still made direct payments, covering all Mr X’s personal budget for care and support, into his account. Receiving but not using all the personal budget meant the credit balance on Mr X’s account started, and then continued, to increase.
14. In Spring 2024, following the annual change to DWP benefits, the Council carried out its annual review of Mr X’s financial assessment. The Council wrote to Mr X saying he did not need to contribute towards the cost of his care and support.
15. About two weeks later, Mr X’s financial circumstances changed.
16. About nine months later, a Council social worker visited Mr X to review his care plan. During the visit, the family told the social worker about both Mr X’s difficulties in accessing all his weekly support and his change of financial circumstances. The social worker advised Mr X and his family to report the financial change to the Council’s finance team, which they did later that day. (Following the visit, the Council changed Mr X’s care plan in response to the difficulties he had had in securing all his weekly support.)
17. The Council carried out a financial assessment, taking account of Mr X’s updated financial circumstances. The Council found Mr X needed to contribute towards the cost of his care. The Council wrote to Mr X showing how it had worked out his weekly contribution, which it had backdated to the change in his financial circumstances. The backdated costs were based on the support set out in Mr X’s care plan. The Council also told Mr X’s family how they could challenge its decision about the contribution Mr X needed to pay.
18. Given the underspend of his personal budget, Mr X’s direct payment account had a significant credit balance. The Council took back much of the direct payment money from the account. (The Council later suspended further direct payments into the account.)
19. About six months of correspondence followed between Mr X’s family, the Council and the Third Party about the backdated costs. The correspondence included Mrs Z, for Mr X, also complaining to the Council. In summary, Mr X’s family questioned the contribution and backdated costs sought by the Council. The family said, as Mr X had received about 30% of his weekly support, it was disproportionate to seek payment of 100% of his contribution. As the Council had clawed back some of its direct payments, Mr X should pay only some backdated costs. Mr X’s family offered to pay 40% of the amount sought by the Council. (The family later made a large payment into Mr X’s direct payment account.)
20. In response to the family’s concerns, the Council reviewed their cost calculations. In doing so, the Council needed information from the Third Party. The Council then assessed the cost of the care Mr X had received since his change of financial circumstances. As the care received was considerably less than that set out in Mr X’s care plan, the backdated costs were reduced. The Council wrote to Mr X’s family about the revised backdated costs. The Council said, as the cost of care received by Mr X was less than his assessed contribution, he needed to pay all the reduced backdated amount. The Council offered to discuss payment arrangements, including an instalment plan, with the family for the backdated costs.
21. During the review, the Third Party refunded money into Mr X’s direct payment account, which contributed to the reduced backdated costs. (Mr X and his family ended their arrangement with the Third Party.)
22. The Council also apologised for the time it had taken to respond to Mrs Z’s complaint, which overlapped with its review of the backdated costs. The Council explained it had taken time to get necessary information from the Third Party for its review. It accepted it failed to tell the family about this and confirmed it had reminded its officers of the importance of keeping people updated.
23. While the Council’s review significantly reduced the original backdated costs, after the six months correspondence, a large sum remained for payment. Mr X’s family continued to say it was unfair that he pay all the remaining backdated costs given he had not received all his weekly care. However, they offered to pay a further sum towards the remaining costs. The Council’s final position was Mr X’s assessed contribution, backdated to his change of circumstances, covered the cost of the care he had received. He therefore needed to pay all the remaining backdated costs. The Council repeated its offer to discuss payment arrangements.
24. Mrs Z brought Mr X’s complaint to the Ombudsman. The Council told Mrs Z it would not seek payment of the remaining backdated costs while the Ombudsman considered the complaint.

What the Council told us

25. The Council said it had taken suitable steps to both ensure Mr X’s contribution and the backdated costs were correct, and to resolve the complaint. However, it recognised it had taken time and effort for Mr X’s family to raise and pursue their concerns. And the family’s concerns had resulted in adjustments to the Mr X’s direct payment account and the backdated costs. The Council therefore offered a symbolic payment of £300 in recognition of Mrs Z’s time and trouble related to its complaint handling. (Mrs Z declined the Council’s offer.)
26. The Council also said it had changed its procedures in response to what had happened. It now completed a full reconciliation of a direct payment account before writing to people about outstanding costs.

Consideration

27. I had no reason to doubt Mr X’s family when they said they did not realise they needed to tell the Council if Mr X’s financial circumstances changed. It is relatively easy to overlook the contents of ‘routine’ or ‘standardised’ letters. However, the information provided by the Council included a letter sent to Mr X in 2020 when it started to make direct payments. The letter included a section about ‘changes to circumstances’. This section of the letter asked Mr X to make contact if, for example, there were any changes to his income, including an award of another benefit. The section continued with, effectively a warning, that changing circumstances might affect the amount he had to pay towards his care and support. And delay reporting changes might result in backdating any increased contributions.
28. The Council also wrote to Mr X in 2024 shortly before the DWP also wrote confirming he had been awarded an additional benefit. The Council’s letter, in bold font, said Mr X did not need to contribute towards his care costs but he should let it know as soon as possible if his circumstances changed. And, a ‘change of circumstances’, included changes to Mr X’s benefits. The letter also said delay in reporting changes might result in backdated contributions.
29. The Council’s 2020 and 2024 letters showed it took suitable steps to let Mr X know he should quickly report changes to his financial circumstances. I therefore found no fault here by the Council.
30. Once the Council knew of Mr X’s changed circumstances, it contacted the DWP to verify his benefit rights. It then assessed what contribution, if any, Mr X should make based on that updated financial information. These were suitable steps to take in response to the reported change of circumstances and I found no fault here by the Council.
31. The financial assessment showed Mr X should have been contributing to the cost of his care from the date his financial circumstances had changed. The change to Mr X’s circumstances had taken place about 10 months earlier. And the assessed contribution payable by Mr X was over 90% of his personal budget. The backdated payment sought by the Council was therefore a large amount.
32. I also recognised the Council later reduced the backdated costs as Mr X had not received all the support set out in his care plan. And, in changing its procedures, the Council accepted it should have ensured it fully reconciled Mr X’s direct payment account before first writing to him about the backdated costs. The Council also, through Mr X’s social worker, was aware he had not received his whole care package even if this information had not reached its finance officers. The Council was therefore at fault in its original, incorrect, calculation of the backdated costs, which assumed Mr X had received all the support set out in his care plan.
33. However, the Council responded appropriately in reviewing the backdated costs, which also led to the Third Party’s reducing its charges. I saw no evidence the Council took formal action to recover any costs from Mr X while carrying out the review. And a significant sum remained payable by Mr X after the review. I found the Council’s review suitably addressed any distress the original calculation may have caused Mr X and his family.
34. I also recognised Mr X and his family believed it was unfair for the Council to ask them to pay all the remaining backdated costs. However, care and support is not usually ‘free’. The amount a person pays for care may range from nothing to 100% of the cost. The financial assessment decides the maximum contribution a person pays towards their care costs. And the Council only contributes to care costs if those costs exceed a person’s assessed financial contribution.
35. Here, based on Mr X’s changed circumstances, the Council assessed his contribution was about 90% of the personal budget for his care. So, if Mr X had received all the support in his care plan, he would have contributed about 90% of the costs with the Council funding the rest. However, Mr X only received about 30% of the care plan support. His 90% contribution therefore covered the whole cost of the care he had received. I therefore found no fault in the Council asking Mr X to pay all the revised, and reduced, backdated care costs.
36. However, it took about two months for the Council to respond to Mrs Z’s complaint. So, there was avoidable delay in the Council’s complaint handling and it admitted it did not contact Mrs Z to explain why it needed more than 20 working days to respond (see paragraph 11). The failure to keep in touch with Mrs Z about the complaint would likely have added to her and the family’s frustration and existing distress in facing a large, unexpected bill. To put that right, the Council had apologised and, in responding to us, then offered a symbolic payment of £300. I recognised Mrs Z continued to find the Council’s position on costs unfair. I considered our guidance on remedies and the circumstances of this case, including Mrs Z’s reasons for refusing the Council’s offer of a symbolic payment. I found the Council’s apology with a symbolic payment of £300 proportionately and reasonably addressed the injustice caused by fault in its complaint handling.

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Action

37. The Council originally sought an incorrect amount in backdated costs for Mr X’s care. It had acted correctly to put this right and explained why Mr X was responsible for paying all the revised backdated costs before we received the complaint. However, the Council’s apology did not suitably address the injustice caused by fault in its complaint handling. So, the Council agreed (within 30 working days of this decision statement) to make a symbolic payment of £300 to Mrs Z in recognition of the avoidable time and trouble caused by fault in its complaint handling.
38. The Council also agreed to provide us with evidence it had complied with the action set out at paragraph 37.

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Decision

39. I found fault causing injustice. The Council agreed to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman