Summary: Mrs X complained the Council produced backdated billing for her sister’s care charges because it states she overpaid her carers. Mrs X also complained the Council started to charge client contributions towards her sister’s care. And, Mrs X complained about the handling of her complaint. We found fault with the Council applying top-up fees for Mrs X’s sisters care. We also found fault with the Council delaying in billing Mrs X’s sister for her client contributions. During our investigation, the Council accepted fault for charging top-up fees and agreed to remove these. The Council has also advised it is only backdating charges to 2021 rather than 2017 for the client contributions. I consider the Council’s actions suitably address the injustice caused through its fault. The Council has also agreed to apologise to Mrs X for the distress its actions caused and confirm in writing the remaining balance owed.

The complaint

1. Mrs X complained the Council produced backdated billing for her sister’s care charges because it states she has overpaid for her sister’s carer. Mrs X says she was unaware of any limits on how much of her sister’s direct payments could be used to pay for her carers.
2. Mrs X complained the Council has started to charge for client contributions towards her sister’s care.
3. Mrs X also complained the Council allowed a member of staff to respond to her complaint who was involved in the matter she complained about.

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The Ombudsman’s role and powers

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
6. 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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What I have and have not investigated

7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. The Ombudsman cannot investigate a complaint which is about events known to Mrs X for more than 12 months without good reason.
9. I am investigating the Council’s actions about issuing invoices to Mrs X for her sister’s care since March 2024. This includes any delays with the Council producing this billing and the accuracy of the billing itself. I can also look at the accuracy and validity of applying the client contributions since March 2024.
10. I am not investigating the level of client contributions the Council has applied to Mrs X’s sister’s care charges from 2017 to 2024. I am also not investigating the content of a previous complaint to the Council in 2020 by a family member about the validity of applying client contributions to Mrs X’s sister’s care. I will include this information within the decision statement for context but will not be investigating the merits of the Council applying these charges or the cost of these charges. This is because Mrs X’s family was aware of these issues and did not bring these to the attention of the Ombudsman within 12 months. There is no good reason to exercise discretion to investigate these matters now.

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How I considered this complaint

11. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
12. Mrs X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Assessing and charging for social care services

13. 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.
14. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning. It should confirm the final amount of the personal budget through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.
15. Personal budgets can be paid through Direct Payments. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.
16. The Council’s policy on Direct Payments says these “are designed to be used flexibly and innovatively and there should be no unreasonable restriction placed on the use of the payment, as long as it is being used to meet eligible care and support needs as identified in the support plan or Education, Health and Care Plan or the Child in Need Plan.”
17. 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)
18. 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.

Council complaint procedure

19. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. The council should include in its complaint response:

• how it considered the complaint;
• the conclusions reached about the complaint, including any required remedy; and
• whether it is satisfied all necessary action has been or will be taken by the organisations involved; and
• details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.
  (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

20. The Council’s complaints procedure says it will provide a response to a person’s complaint within 10 working days. The Council’s policy also says that Team Managers will look to provide complaint responses to a person and keep the complaints team updated about when they provide a complaint response.

What happened

Background information

21. In 2013, the Court of Protection created a court order for funding and provision of Mrs X’s sister’s care, I shall refer to Mrs X’s sister as Ms Z in this decision. This court order contained the following relevant points:
• The Council to fund domiciliary care for 5 days each week for four hours each day.
• This funding was for “up to” two carers.
• This care could cost a “maximum” of £740 per week.
• The Council should provide funding by Direct Payments and Mrs X would be responsible for managing this Direct Payment funding.
• The Council should keep this funding under 6-weekly review.
22. Following the court order the Council set up the Direct Payment of £740 each week and confirmed Ms Z had a “nil” contribution to the cost of her care. At this time, the Council confirmed that a “Top-Up” cost could be applied for any service that costs more than the sum agreed and Mrs X would be responsible for paying this. The Council confirmed it would complete a review in six weeks and then annually after that point.
23. The Council maintained Ms Z’s Direct Payment at £740 per week with nil contributions until 2017.
24. On 4 January 2017, the Council completed a financial assessment of Ms Z and confirmed she needed to pay a client contribution of £55.97 from 4 February 2017.
25. Ms Z did not pay the client contribution. The Council completed a new financial assessment in every year until 2024 and sent letters confirming this new client contribution. The Council no longer has records of the letters sent before 2020 because of the passage of time but has this recorded on its system. The first evidence of a letter is dated 30 January 2020.

Matters relating to this complaint

26. On 12 March 2024, the Council completed an audit of Ms Z’s care. The Council issued a backdated invoice of £4,557.92 for the time period 4 December 2021 to 16 June 2023 for Ms Z’s client contributions.
27. In July 2024, the Council completed a reassessment of Ms Z’s care needs. The Council completed a full financial reassessment of Ms Z in August 2024 at Mrs X’s request. The Council wrote to Mrs X to confirm Ms Z needed to contribute £84.35 to the cost of her care.
28. The Council corrected its financial assessment because it applied the incorrect hourly rate and wrote to Mrs X to confirm Ms Z’s contributions were in fact £58.09 since 1 April 2024.
29. On 2 October 2024, the Council completed an up-to-date audit of Ms Z’s care charges and issued an invoice for £3,196.80 for Ms Z’s client contributions from 13 July 2023 to 17 September 2024.
30. The Council also issued top-ups invoices to Mrs X for Ms Z’s care for £32,682.19 and £30,922.43 for excess payments made to carers above the rates the Council allows. The Council issued each of these invoices following the audits.
31. On 6 December 2024, Mrs X made a complaint to the Council. Mrs X said:
• She disputes the client contribution because no-one had explained to her why this used to be nil but now her sister needed to contribute towards the cost of her care.
• The Council has not provided clear and transparent information to explain the client contributions or the invoices.
• She disputes the top-up fees invoices because the Court of Protection outlined the funding amount for Ms Z’s care in 2013. Mrs X said the Council should not be inflexibly applying its carers rates and saying anything above this amount this was a “top-up”.
32. The Council issued a complaint response on 20 December 2024. The Council said:
• It completed an audit of Ms Z’s care in March 2024 which confirmed Ms Z had not been paying her client contributions. This audit also confirmed Ms Z was paying a higher personal assistance rate meaning this cost above the Council’s standard rate was consider a top-up cost at Ms Z’s expense.
• It completed a further audit in August 2024 which prompted it to issue all four up-to-date bills totalling £71,359.34 in costs owed by Ms Z.
• It has completed financial assessments of Ms Z’s care costs since 2017 detailing that Ms Z needed to contribute to the cost of her care.
• Mrs X complained to the Council in 2020 about needing to pay client contributions and the Council responded at this time to explain why it was applying these. The Council explained the financial assessments completed in 2021, 2022, 2023 and 2024.
• The Council said its documentation shows only single handled care for Ms Z so could only accept rates of £18.50 and not £37 per hour as this would be double payment.

Analysis

Top-up payments

33. As part of the Ombudsman’s investigation into Mrs X’s complaint, we asked the Council questions about how it had decided that Ms Z needed to pay top-up fees for her care.
34. The Council responded to our enquiries to advise it had now completed a further investigation into Ms Z’s Direct Payments and compared this with her care and support plan. The Council said on review of this information it has cancelled the top-up fees invoices. The Council advised that it is providing a personal budget for Ms Z which is flexible to meet her needs and the amount of money Ms Z was spending on her care did not exceed this budget. As such, it’s decision to charge top-up fees was incorrect.
35. The Council’s decision to cancel the invoices for the top-ups fees falls in line with my consideration of this matter. The Court of Protection set out the parameters of the funds Ms Z should receive to meet her care needs. Mrs X has spent Ms Z’s direct payments flexibly but within these parameters. It is not relevant what rates the Council would normally pay carers in this situation. Provided Mrs X is spending the Direct Payments to meet her sisters needs, she may do so as she sees is in Ms Z’s best interests.
36. The Council has now taken the correct action of cancelling the invoices to correct its fault. The Council should confirm to Mrs X it has cancelled the top-up invoices costing £32,682.19 and £30,922.43 and apologise to Mrs X for any distress caused in sending these invoices.

Client contributions

37. As explained in paragraph 10, I am not investigating the validity of the Council applying client contributions to Ms Z’s care charges. The facts are that since 2017 the Council decided Ms Z needed to pay client contributions towards the cost of her care following a financial assessment. The Council has kept this under review yearly and told Mrs X that Ms Z should pay client contributions. Mrs X disputed this in 2020 and the Council explained its position at this time. Should Mrs X have wished to dispute this, she would needed to have brought this to the attention of the Ombudsman sooner.
38. I have reviewed the Council’s financial assessments of Ms Z in August 2024 and April 2025. These financial assessments consider the relevant factors for Ms Z’s care and financial situation and outline how the Council has calculated Ms Z’s client contributions.
39. Within the letters the Council sent to Mrs X about Ms Z’s financial assessment in 2024 and 2025 it detailed that Mrs X could contact it to dispute the calculations if the financial information was incorrect. There is no evidence Mrs X has been able to dispute the accuracy of the financial assessments by providing new relevant information.
40. I cannot find fault with the Council’s financial assessments or decision that Ms Z should need to pay a client contribution since March 2024. As noted above in paragraph 37, I cannot investigate the validity or accuracy of client contributions before this date and am considering these accurate.
41. Since the Council provide Ms Z with the agreed on Direct Payments, assessed Ms Z as needing to contribute towards the cost of her care and told Mrs X about the need for Ms Z to pay her client contributions, the Council is entitled to charge for the client contributions.
42. The Council can backdate charges for Ms Z’s client contributions from the first date it told Mrs X it would start to charge these, which would be from 4 February 2017. Or, from the evidence available, at least January 2020. The fact the Council failed to issue an invoice until 2024 does not invalidate these charges. However, the delay in issuing any invoices for charges is fault. This fault would have caused Mrs X and Ms Z distress because of the large outstanding balance.
43. Despite being able to backdate charges to February 2017, the Council has only issued bills for client contributions since 4 December 2021. As part of the Ombudsman’s investigation, the Council has confirmed it is only recovering client contributions back to 4 December 2021. This means the Council has effectively removed four years and nine months’ worth of valid client contribution charges.
44. Removal of four years and nine months’ worth of valid charges is of larger monetary value than any goodwill gesture the Ombudsman would normally recommend in these circumstances. This includes consideration of the distress caused to Mrs X and Ms Z through the incorrect top-up invoices and delayed client contribution billing. The Council should apologise to Mrs X for the delayed production of the billing, confirm it will not backdate charges before 4 December 2021 and confirm the current balance owed.

Complaint handling

45. Mrs X lodged her complaint with the Council on 6 December 2024. The Council’s complaints procedure says the Council should provide a complaint response by 20 December 2024. The Council issued its complaint response on this date. The Council met its complaint timescales and I do not find fault.
46. Mrs X said that a person she complained to the Council about was involved in the Council’s response. The Council’s policy says that team managers will provide a response to a person’s complaint. The person Mrs X has advised she was complaining about was the team manager for this specific area. However, the Council acted in line with its policy by having this team manager respond to the complaint. Additionally, having reviewed Mrs X’s complaint correspondence, she does not name the team manager or directly complain about them. As such, I do not consider the Council has acted inappropriately in allowing the team manager to provide the response.
47. Overall, I do not find fault with the Council’s handling of Mrs X’s complaint.

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Action

48. Within four weeks of the Ombudsman’s final decision the Council should:
• Confirm in writing to Mrs X it has cancelled the top-up invoices costing £32,682.19 and £30,922.43 and apologise to Mrs X for any distress caused.
• Provide an apology in writing to Mrs X for the delayed production of the client contribution billing. And, confirm in writing it will not backdate client contribution charges for before 4 December 2021 and confirm the current balance owed by Ms Z for her outstanding client contribution charges since 4 December 2021.
49. The Council should provide us with evidence it has complied with the above actions.

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Decision

50. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman