Summary: Mrs X complained fault by the Council led to her mother overpaying for home care. The Ombudsman finds the Council was at fault for not providing enough information when Mrs X’s mother moved from funding her care privately to getting direct payments from the Council. The Council has agreed to give Mrs X further written explanations and, if her mother paid the care agency more than she should have done, refund the difference. It will also amend staff guidance to prevent the fault recurring.

The complaint

1. Mrs X complained the Council failed to follow procedures about informing a care provider when her mother, Mrs Y, moved from privately arranged home care to direct payments. Mrs X says because of this the care agency invoiced Mrs Y at the wrong, higher, rate. The agency has now changed the rate and backdated the change to an extent. But Mrs X says Mrs Y has still overpaid for the first 30 weeks of being on direct payments.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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

4. I have considered information from:
• Mrs X’s complaint, telephone conversations with her and documents she has sent me; and
• The Council’s response to Mrs X through its complaints procedure and its response to my enquiries.
5. I have also considered:
• The Care Act 2014
• The Care and Support Statutory Guidance 2014 (“the Guidance”)
• The Care and Support (Charging and Assessment of Resources) Regulations 2014 (“the Regulations”)
6. I gave Mrs X and the Council the opportunity to comment on a draft of this decision before making this final decision.

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What I found

7. The Care Act places a duty on councils to provide information and advice about care and support for people in its area. The Guidance says councils should make all reasonable efforts to ensure information and advice they give meets an individual’s requirements, is comprehensive and is given at an early stage. It says councils must seek to ensure all relevant information is available to people for them to make the best informed decision in their particular circumstances.

Charging for home care

8. Where a council arranges home care and support to meet a person's needs, it may charge the adult for the cost of the care. The Guidance and Regulations state that people who have over the upper capital limit set by the Council are expected to pay for the full cost of the care they receive at home. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
9. Councils must assess the means of someone who has less than the upper capital limit, to decide how much they can contribute towards the cost of home care. I refer to the amount decided from this process as the assessed contribution. A council must tell the person what their assessed contribution is.
10. A council’s care and support planning process will identify how best to meet someone’s care needs. As part of that, the council must provide the person with a personal budget. The personal budget is the cost to the council of meeting the person’s needs which the council chooses or is required to meet.
11. Councils can make direct payments to a person to pay for some, or all, of their personal budget. Someone receiving direct payments contracts with the care agency directly.
12. The direct payment and assessed contribution should come to the same amount as the personal budget. If a care agency charges more for the care it provides than the personal budget, the person receiving care can choose to pay the extra amount. The extra amount can be referred to as a ‘top-up’.

The Council’s direct payments policy

13. The Council’s policy says it will:
• provide information about direct payments and ensure that service users who choose to receive a direct payment understand their roles and responsibilities; and
• monitor the status of, and carry out financial audits of, service user accounts.

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What I found

14. Mrs Y received care at home from a care agency (the Agency). She had an hour visit every morning and a half hour visit every evening. At the start she funded the care herself. Mrs Y’s capital then went below the threshold for self funders.

July – December 2017

15. In July 2017 the Agency was charging Mrs Y £11.40 for each half hour visit and £19.40 for each hour visit. This was the Agency’s self-funders rate and was a higher rate than it charged people on direct payments. Mrs X and Mrs Y were unaware the Agency charged different rates.
16. In early July 2017 the Council assessed Mrs Y’s needs. It agreed she was eligible for care and support. The assessment said the next step was to arrange a direct payment to fund her current care package. The assessor also prepared a support plan for Mrs Y. The plan set out her support as an hour visit every morning and a
    45 minutes visit every evening – a total of 12.25 hours a week. Using a rate of £15.20 per hour the plan said the personal budget for this was £186.20 a week.
17. By early August 2017 Mrs X and Mrs Y had signed a direct payment agreement with the Council. The agreement said by having direct payments Mrs Y was responsible for arranging and managing her support. The agreement made clear Mrs Y was in control of the direct payment but she nominated Mrs X as the person to help with the management of the direct payment account.
18. In the agreement Mrs X and Mrs Y said they would set up a separate bank account for the direct payments and use them to buy care from the Agency. They also said Mrs Y would pay any assessed contribution into the direct payment account every four weeks. The Council agreed its assessment workers would make sure Mrs Y had a financial assessment and paid her assessed contribution into her direct payment account every four weeks. The Council agreed its Adult Care Financial Services (ACFS) would carry out the financial assessment to decide how much the contribution towards the direct payments would be and pay. The Council said ACFS would pay the direct payment into the direct payment bank account every four weeks and tell Mrs Y about any changes to the direct payments or assessed contributions.
19. In early August 2017 the Council assessed Mrs Y’s contribution towards her care.
20. On 1 September 2017 a Council officer, Officer A, recorded she spoke to Mrs X and said when Mrs Y moved over to direct payments she should have been asked to top up the account because the Council would not pay the Agency over the ‘managed rate’ of £15.20. Officer A noted Mrs X was fine with this and would top up to remain with the Agency. Officer A said she would contact Mrs X the next week to tell her what Mrs Y’s contribution and top-up would be. The Council says the case notes showed Officer A advised Mrs X it was Mrs X’s responsibility to contact the Agency to confirm the rate payable. However the case notes make no mention of this.
21. Officer A then completed a further support plan for Mrs Y. It said the Council would pay direct payments towards 10.5 hours of care a week at a rate of £15.39 per hour. The personal budget for this was £161.60 a week. The support plan did not refer to Mrs Y’s assessed contributions or any top-up needed. The Agency was still charging Mrs Y its self-funders rate of £11.40 for each half hour visit and £19.40 for each hour visit.
22. The Council’s records show it sent a letter to Mrs Y on 11 September 2017. The letter confirmed she would receive a backdated payment for direct payments due from 6 July 2017. The Council would then pay direct payments to her every four weeks in advance. The letter confirmed her assessed contribution and said she would need to pay this into her direct payment account. The direct payment and assessed contribution amounted to £186.20 a week. The letter made no reference to the Agency’s different rates for self-funders and people receiving direct payments or to the need for any top-up payments. The Agency was charging Mrs Y £215.60 a week as a self funder, a difference of £29.40 a week.
23. Mrs Y had not received the letter by 19 September 2017 when Mrs X rang
    Officer A as she had heard nothing about funding. Officer A’s note of the call says:
• Officer A told Mrs X Mrs Y’s letter should be received shortly, Mrs Y should open the separate account needed, Mrs Y could add the contribution and top-up and then pay this to the Agency.
• Mrs X said she would open the new account the same day to pay in the cheque.
• Officer A worked out the top-up due to the Agency as being £6.40 a week. She noted this was the difference between the Agency’s ‘managed hourly rate’ of £15.39 per hour and the ‘DP hourly rate’ of £16 per hour.
• Officer A noted “(Mrs X) was happy with this and understood this”’
24. In early October 2017 Officer A closed the case. The closure summary said the family had been made aware of the Agency’s rate and what the Council would pay up to and were happy to make top-up payments to remain with the Agency.
25. Mrs Y continued to pay the Agency according to its self-funders rate and continued to receive 10.5 hours care a week. Mrs X managed the payments by transferring the Council’s direct payments from the new direct payment account to Mrs Y’s personal account, then paying the Agency in full from that personal account.

January – May 2018

26. The Council’s Adult Care Financial Service (ACFS) checked Mrs Y’s finances in January and February 2018. ACFS sent alerts to Officer A in January and February because there was no record on the support plan of a top-up having been discussed with Mrs Y, and Mrs Y appeared not to be making her assessed contributions as she should have been. ACFS recorded the top-up as being £54 a week. ACFS asked that Officer A contact Mrs X to explain the need for a top-up and decide whether the underpaid assessed contribution should be addressed. ACFS also said in future Mrs Y must make all payments to the Agency from the direct payment account, not her personal account.
27. Officer A recorded she tried to call Mrs X in mid February 2018 and left a message asking her to call back. There is no record of further contact until
    9 May 2018.
28. ACFS’s records say Mrs Y started to use a new account from early
    February 2018.
29. On 9 May 2018 Officer A rang Mrs X again and spoke to Mr X. Officer A recorded she had called to discuss contributions and top-ups. Mr X said Mrs X had sorted the issues with top-ups and was now putting the correct amount into the direct payment account and paying the Agency. The record does not show what figures this entailed. Officer A said she would amend the support plan to include reference to the top-up.
30. In early May 2018 Officer A amended Mrs Y’s support plan. The plan says the reason for the update was to include the top up fee which hade been discussed previously by telephone but not been included on the support plan. The plan said Mrs Y was to get the same direct payment as before, but added she would also need to pay her assessed contribution and a top-up. By then ACFS had amended the assessed contribution for 2018/19 to be £80.60 a week. The plan says the assessed contribution was £80.60 every four weeks. The top-up was recorded as £6.41 a week, the difference between the Agency’s rate of £16 per hour and the £15.39 per hour which was the maximum the Council would pay.
31. By May 2018 the Agency was still charging Mrs Y its self funders rate which was now £12 for a half hour visit and £19.98 for an hour visit.
32. Later in May 2018 Officer A contacted the Agency. She said she understood the Agency’s direct payment rate was £17 an hour so did not understand why Mrs Y appeared to be paying at a higher rate. The Agency said no-one had told it Mrs Y was getting direct payments from the Council. It confirmed the Agency’s self-funder rates were higher than its direct payment rates. The Agency agreed to change the rate but said it could only backdate the direct payment rate to early May 2018. Later the Agency agreed to backdate the rate to 12 February 2018.

Mrs X’s complaint to the Council

33. In July 2018 Mrs X complained to the Council. She said Mrs Y was owed money from July 2017 to January 2018.
34. On reviewing the case the Council realised it had calculated its direct payment on the basis that Mrs Y would get 12.25 hours. However her then current plan said she would get 10.5 hours care a week and she had only ever received 10.5 hours care a week. In August 2018 the Council made a one-off payment to Mrs Y’s direct payment account of £1412.05 as she had paid for 15 minutes more care each day than she had received.
35. The Council wrote to Mrs Y in September 2018 to say the one-off payment was being made. The letter said Mrs Y would already have discussed and agreed with her social care worker what the payment could be used for and offered further clarification if needed. Mrs X says she does not understand why the payment has been made and has not used it.
36. Mrs Y now both pays for and receives 12.25 hours care a week.
37. However, the Council did not accept it should pay for the difference between the Agency’s self funders rate and its direct payment rate between July 2017 and January 2018. The Council considered it was Mrs X and Mrs Y’s responsibility to negotiate the appropriate rate with the Agency and Officer A had advised them of this.

Findings

38. Mrs X and Mrs Y did not know the Agency charged a different rate for self-funders compared to people receiving direct payments from the Council. They had always contracted directly with the Agency and just thought the Council was now contributing towards what they paid. They had no reason to think the Agency’s rate would change because of the Council’s financial help.
39. The Council had a duty to seek to ensure Mrs Y had the information she needed to make informed decisions about moving from being a self-funder to having direct payments. The Council should have been aware that moving to direct payments could alter the rate the Agency charged. The Council should either have checked the Agency’s rates or advised Mrs X and Mrs Y to check them. There is no evidence anyone at the Council advised Mrs X going on to direct payments might alter the rate payable and that she should confirm the rate payable with the Agency. The direct payment agreement gave no indication this might be an issue. The Council failed to provide the relevant information about rates when it should have done and that is fault.
40. The Council’s fault led to the Agency continuing to invoice Mrs Y at a higher rate than it would have done had it known she had moved to direct payments. But, from the evidence I have seen, it is not clear how the Council’s fault has affected Mrs Y’s finances overall. The Council should now assess this.
41. The Council’s fault also led to Mrs X spending avoidable time and trouble trying to sort out Mrs Y’s finances.

Agreed action

42. Within two months the Council will write to Mrs X to explain for the period from
    6 July 2017 to 11 February 2018:
• both the Agency’s and the Council’s direct payment rates, and what direct payments the Council paid Mrs Y;
• what assessed contributions and top-ups (if any) Mrs Y should have paid had she been charged at the Agency’s direct payment rate;
• what assessed contributions and top-ups Mrs Y did pay;
43. If Mrs Y paid more than she should have done, the Council will then refund the difference.
44. Within two months the Council will make changes to its staff guidance on direct payments. The changes will ensure staff are aware that if someone moves from being a self-funder to receiving direct payments staff must advise them they need to check with the care provider to see if there is a different rate for someone receiving direct payments.
45. Within six weeks of a final decision the Council will pay Mrs X £100 to acknowledge her time and trouble trying to sort out the problems caused by the Council’s failure to provide enough information.

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Final decision

46. I have now completed my investigation because the Council’s actions will remedy the injustice caused by its fault.

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Investigator's decision on behalf of the Ombudsman