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Essex County Council (21 000 364)

Category : Adult care services > COVID-19

Decision : Upheld

Decision date : 16 Feb 2022

The Ombudsman's final decision:

Summary: Mr B complained the Council wrongly and repeatedly sent invoices to his mother, Mrs C, for care charges she did not owe, leading her to take her own life. We uphold the complaint, with the Council having acknowledged that it wrongly failed to identify Mrs C’s case as one that should have benefitted from funding it received during the COVID-19 pandemic. While we cannot say the invoices led Mrs C to take her own life we find they caused her unnecessary distress. Mr B was caused distress in turn. The Council accepts these findings and at the end of this statement we set out the action it has agreed to take to remedy his injustice.

The complaint

  1. I have called the complainant ‘Mr B’. He complains the Council wrongly and repeatedly sent his mother, ‘Mrs C’, invoices for care charges that were not owed. Mr B says the invoices caused Mrs C significant distress. He believes the invoices contributed to her taking her own life in January 2021. Mr B says these events have caused him distress in turn.

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The Ombudsman’s role and powers

  1. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
  3. If we are satisfied with a council’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

  1. Before issuing this decision statement I considered:
  • Mr B’s written complaint to the Ombudsman and any supporting information he provided;
  • communications between Mr B and the Council pre-dating our investigation covering the matters complained about;
  • information provided by the Council in reply to written enquiries; and
  • any relevant law and guidance referred to in the text below.
  1. I also sent Mr B and the Council a draft of this decision statement and invited their comments. I took account of any comments made before issuing the final decision statement.

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What I found

Relevant law, guidance and Council policy

  1. Councils can usually make charges to the users of care services, for the care and support services they provide or arrange. (Care Act 2014, section 14)
  2. This means councils will assess a person’s finances to decide what contribution he or she should make to a personal budget for care.
  3. However, there are some circumstances where a council cannot charge for care. For example, ‘intermediate care’ or ‘reablement’, which is care provided for up to six weeks. This is often provided when someone is discharged from hospital.
  4. The Government publishes statutory guidance on the recovery of debts incurred through non-payment of charges of care. It says that local authorities should bear in mind certain principles when collecting debts. These include that they must be discussed with the person or their representative and that they should act reasonably. Local authorities should consider whether it is appropriate to recover debts even where they have the legal power to do so (See Care & Support Statutory Guidance, Annex D).
  5. The Council has its own charging policy. During the events covered by this complaint a version written in March 2015 was in force. This said the Council “will not charge for services where it is prevented from doing so by regulations or guidance”.
  6. The policy also said the Council will “give clear and simple information about charging at the right time”. It said: “we give clear information about financial assessment before and during the process”.
  7. The Council revised its charging policy in September 2020. The commitments set out above are repeated in the current version with only minor changes to wording.
  8. In March 2020 the Government gave additional funding to local authorities to meet extra social care costs arising from the COVID-19 pandemic. A letter from the Secretary of State said this funding would be used, amongst other matters, to provide “free out-of-hospital care and support to people discharged from hospital”. It was left to councils to decide exactly how they would distribute this money to support those receiving care.

Key facts

  1. I have taken the beginning of the events covered by this complaint as being May 2020. At this time, Mrs C was discharged from hospital following an admission resulting from a physical illness. Mrs C was discharged into a residential care home and from there, in early June 2020, back to her home.
  2. Mrs C had a history of depressive mental illness, for which she received support in the community from NHS mental health services. She had made one previous attempt to take her own life in 2019.
  3. Mr B says that as part of discharge planning for Mrs C while she was in hospital, he and other family members and Mrs C’s clinical support team all expressed concern she would be readmitted without support in the community. For example, with reminders to take medication. Mr B says the family received verbal reassurance from clinicians that Mrs C would receive support at home, free of charge and this would be for an indefinite time. Mr B is clear there was no reference to reablement care, as he checked this at the time (Mr B said Mrs C had received this care in the past following a previous hospital admission). Mr B does not know if there was anyone from Council adult social care services at that meeting. There is no note on the Council’s records to indicate Mrs C had any contact with that service while she was in hospital.
  4. The relevant social work notes only begin following Mrs C’s discharge from hospital. She was in the residential care home for around three weeks. She did not have to pay for that care which was identified as being funded from the additional COVID-19 funding the Council received. While Mrs C stayed at the residential care home, a social worker assessed her care needs. The social worker arranged that when Mrs C returned home she would receive support from a care agency, which visited her three times a day.
  5. The social work notes from June 2020 indicated the social worker believed Mrs C may need to contribute to the cost of her care. They referred her case to the Council’s financial assessment team. The notes do not say what the social worker told Mrs C or Mr B about how her care at home would be funded. Mr B says he remained under the impression any care Mrs C received at home would be free of charge.
  6. At the beginning of July 2020, the financial assessment team referred the case back to the social worker as the referral form was not fully completed.
  7. In August 2020 Mrs C’s social worker changed. The new social worker reviewed Mrs C’s care package and noted the financial assessment had not completed.
  8. At the beginning of October 2020, the Council sent an invoice to Mrs C for one week’s care charges of around £250. This prompted Mrs C to get in touch with the Council and she spoke to a customer services officer. They contacted Mrs C’s social worker and noted the form to complete a financial assessment remained outstanding. They also told the social worker that Mrs C reported her son (Mr B or his brother) being told that she would not have to pay for care.
  9. At the beginning of November 2020, the Council sent a second invoice to Mrs C for care charges. It now included charges incurred from when she first began receiving care at home, so the invoice totalled around £3200.
  10. A week later an NHS worker supporting Mrs C got in touch with the Council. She spoke to a duty social worker who was told Mrs C was “extremely distressed” by the invoices. The duty social worker noted the request for a financial assessment remained outstanding. They asked Mrs C’s social worker to contact Mrs C.
  11. At the beginning of December 2020, the finance assessment team contacted Mrs C’s social worker asking them to properly complete the form to request a financial assessment.
  12. Around the same time Mrs C spoke again to the Council. This coincided with the Council sending her another invoice for care charges which now totalled £4400. Mrs C said if she paid the bill outstanding she would have only a few pounds left to live on until the end of the month. The call handler recorded that Mrs C “knows she has been told before to disregard bill as financial assessment still outstanding”. The call handler also went on to speak to Mr B who said he would help Mrs C during a financial assessment.
  13. Later that month the Council undertook a financial assessment with Mrs C, with Mr B also present. During the assessment Mr B set out his understanding that Mrs C would not be charged for her care on discharge. The officer from the financial assessment team recorded telling Mr B that was wrong and Mrs C’s care was chargeable.
  14. The financial assessment determined Mrs C did need to contribute to her care charges. In January 2021 the Council sent Mrs C a revised invoice. While Mrs C was not assessed as needing to pay full care charges the invoice still asked her to pay around £3300 towards the care she had received to date.
  15. Around 10 days after the invoice was sent Mrs C paid the amount outstanding via an automated payment service. Later that day she took her own life.
  16. After Mrs C took her own life the Council recorded speaking to the care agency who supported her. The Care Agency said that there had been nothing unusual in Mrs C’s behaviour on the day she took her own life. It said she would worry about matters including bills but that she had been receiving reassurance from Mr B and his brother. I have also made my own checks with the Care Agency which told me that it had no record of Mrs C raising concerns with her care workers about the bills she received from the Council.
  17. In February 2021, Mr B made a complaint believing Mrs C’s decision to take her own life stemmed from the invoices she had been sent. He said the family had relied on assurances she would not have to pay for her care. He also said Mrs C had worried frequently about the invoices and implications if she did not pay them, despite him offering reassurance (for example that she would not go to prison for non-payment of the invoices). Mr B later commented: “In my opinion she took her own life because she became obsessed with this large outstanding payment of £4k that the council were hounding her for (incorrectly). She felt she had deceived the council for non-payment […]”.
  18. In March 2021 the Council realised it had made an error in charging Mrs C for care. Internal notes say that the cost of her care at home should have been met from the COVID-19 funding. The Council went on to pay a refund of the care charges to Mrs C’s estate. However, in its contacts with Mr B the Council did not offer any explanation for its actions or apology.
  19. In August 2021 a Coroner completed an inquest into Mrs C’s death which was held on the basis of papers presented and did not call witnesses. The Coroner was made aware by Mr B of his concerns about the invoices Mrs C received from the Council before she took her own life. They recorded a verdict of suicide with Mrs C’s severe depressive disorder being a contributory factor.

Our investigation

  1. As the Council had already acknowledged that it invoiced Mrs C in error our investigation has sought to understand how and why this happened. Initially the Council commented that in June 2020 the “rules were unclear” about how it should use the additional funding it received from Government to meet care costs during the pandemic. However, the Council subsequently withdrew this comment and said that it had issued advice to staff in April 2020, which it shared with us. That advice told staff how to identify on the Council’s database cases which attracted this funding.
  2. The Council said it was an error by Mrs C’s social worker that her case was not correctly identified as one to be funded through the additional funding provided by Government to support social care during the pandemic.
  3. The Council says that following Mr B’s complaint it has reviewed all cases whose funding should have been met from this source. It says it has now corrected any other cases where it identified errors.
  4. The Council has also issued a new charging policy (see paragraph 13 above) and has in place a rolling training programme on financial assessments and charging for all frontline staff. It has also introduced fortnightly reporting to identify all cases where there is a delay in carrying out a financial assessment.
  5. The Council has said it is sorry for its fault in this case and was willing to provide a financial remedy to Mr B subject to our view on this.

Findings

  1. I welcome that the Council accepts it was at fault for not identifying Mrs C’s case as one where she would not have to pay for home care, using the additional funding provided by Government during the pandemic. The Council pinpoints the fault as occurring due to Mrs C’s social worker not identifying the case as such when Mrs C left the temporary stay in the care home in June 2020. I accept this was an oversight. And I accept the Council’s statement that Mrs C’s case was one for which it wanted to use the COVID-19 funding and that this should have extended throughout the period of June 2020 to January 2021.
  2. However, I consider it would be wrong to identify the fault in this case as stemming from a single error. First, this overlooks that its social work staff do not appear to have received clear advice about which cases would benefit from this funding. I have seen copies of guidance given to staff on how to record cases which used this funding. But I have seen no advice given to staff on what criteria the Council used to identify such cases in the first place, nor how long such funding would last before being reviewed. The Government funding has sometimes been referred to as ‘discharge to assess’. In circumstances where someone left hospital to enter a care home before returning to their own home I can understand how confusion may have arisen about whether such funding would follow them throughout that journey. The Council should have therefore kept a record of how it would use that funding for its staff to refer to. Not doing so failed to follow basic good administrative practice in a way consistent with our guidance on this topic which I referred to above.
  3. Second, I consider the Council not only erred in not identifying the case as one benefitting from the funding at the outset, but also in missing opportunities to realise its mistake. In particular I note the following.
  • The lack of any case notes from around the time Mrs C was discharged from hospital which may have helped identification of this case as one where she would not be charged for care.
  • The failure of the social work team, despite reminders, to properly complete a referral to the financial assessment team. While this would not have necessarily led either team to realise the mistake, an earlier financial assessment may have led Mr B to question and complain sooner and led to it being discovered. It would also have limited the invoices being sent to Mrs C.
  • The failure of the Council to act on Mrs C’s suggestion in October 2020 that she was told she would not have to pay for her care. The Council showed no curiosity in exploring this with Mrs C or Mr B.
  • The failure to complete actions in November 2020 when the Council received contact from a health professional supporting Mrs C. There is no record the social worker contacted Mrs C as requested or sought to resolve issues around the charging for care as a matter of urgency, despite knowing the financial assessment remained outstanding and knowing of Mrs C’s distress.
  • The Council then again showed a lack of curiosity in December 2020 when, during the financial assessment, Mr B raised the assurances the family relied on that Mrs C’s care would be free of charge. The officer did not enquire into this matter and it clearly did not occur to them that Mrs C’s case may be one which attracted the additional Government funding.
  1. Third, I also consider the Council’s faults extend to its invoicing practice in this case. At no point did the Council stop to consider the reasonableness of asking Mrs C to pay its revised invoice in January 2021, which had increased due to its own delays. Even if the Council had been entitled to charge Mrs C for her care I would find it at fault for the six month delay in it completing the financial assessment. In that time, I find no indication the Council gave Mr B or Mrs C information, setting out what the result of the financial assessment could be or that she may need to put money aside for the bill. It would be distressing for any person to receive an unexpected bill for over £3000. The Council should have known it would distress Mrs C more, given her vulnerability.
  2. This links to a further concern I have that the Council knew in January 2021 that Mrs C had been distressed by its earlier invoices and expressed concerns about their affordability. It knew of her mental health illness and vulnerability. But the Council took no measures in January 2021 to caution Mrs C or Mr B who helped her with her finances with her consent, about the substantial invoice it was sending.
  3. I am concerned the Council’s current charging policy provides no help to officers on these matters. The Council promises to give clear and simple information about charging at the right time and to provide clear information about financial assessment before and during the process. But the policy does not explain what action it will take if it falls short of these promises. It is a fault for the Council not to have a policy that considers the reasonableness of recovering debts for care charges that are incurred or increase due to its own errors.
  4. The policy is also silent on what support the Council can offer to vulnerable users of its services when it charges them for the care they receive. The Council has told me that if a user of services contacts it with concerns about a bill it will react sympathetically. For example, by negotiating an extended time for repayment of arrears or referring the person to a debt advice charity. It will also reassure them that any debt will not stop it providing care. This is all good practice but there will be times when the Council will need to be proactive and not simply reactive. It is a fault the policy contains no advice to officers on dealing with potentially vulnerable users of services at the point of invoicing.
  5. In considering the consequence of these faults, I understand why Mr B makes the linkage between the invoices sent to Mrs C (especially that in January 2021) and her taking her own life. He bases this on his contacts with his mother in the final weeks of her life and through the timing of when she paid the bill sent to her by the Council. But I must also take account that Mrs C had a longstanding serious depressive disorder which had led her to attempt to take her own life before. I also know from reading her case notes there were other factors which contributed to Mrs C’s mental illness, including her physical illness. I also note the Coroner did not choose to make any enquiries into the potential impact of the Council’s invoices on Mrs C’s actions despite knowing of Mr B’s concerns. I consider the Coroner would be the appropriate person to reach a judgment on whether the Council’s invoices caused Mrs C to take her own life.
  6. However, there is no doubt the invoices the Council sent to Mrs C caused her distress. This is clear from the Council’s own contemporaneous notes as well as Mr B’s account of events. Mr B will also have suffered his own distress from witnessing his mother’s distress.
  7. In addition, the Council will have compounded Mr B’s distress in a further two ways. First, when it ignored his account that the family received reassurances Mrs C would not have to pay for her care. Second, in the unsympathetic way it dealt with him following Mrs C’s death. It was fault for the Council not to acknowledge as soon as it realised it had invoiced Mrs C in error and to provide an explanation for that. It should also have realised the need to provide an early apology for its fault. While it is to the Council’s credit that it has expressed regret for its actions during this investigation, there is no reason it could not have expressed that sooner.

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Agreed action

  1. I welcome that during this investigation the Council indicated its willingness to take action to remedy Mr B’s injustice. It has accepted the findings set out above and has agreed that to do this, it will, within 20 working days of this decision take the following action:
      1. provide a further apology to Mr B recognising the findings of this investigation; and
      2. make a payment of £500 to Mr B in recognition of the distress caused by its actions.
  2. I recognise the Council has already sought to learn some lessons from this complaint. It has reviewed cases similar to Mrs C’s, given relevant training to staff around financial assessments and introduced reports to identify cases of delayed financial assessments. While I welcome all of this, I consider it needs to go further to help avoid a repeat. Within three months of a decision on this complaint the Council has agreed that it will publish a revised version or addendum to its charging policy that will:
      1. give advice to officers on what action to take when an error by the Council (which could be because of delay or for other reasons) results in a charge for care which the recipient will not be expecting; this will take account of my comments above and Annex D of the Care and Support Statutory Guidance; and
      2. give advice to officers on what action they should take where someone being charged for care may be identified as being particularly vulnerable or distressed by its invoices; this will take account of my comments above.

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Final decision

  1. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mr B. The Council accepts these findings. It has agreed action that I consider will remedy that injustice. Consequently, I can now complete my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman

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