Summary: Mr X complained the Council’s Generic Domiciliary Care policy financially disadvantaged his disabled mother, Mrs Y. He said the Council also incorrectly charged for Mrs Y’s care. We do not find fault with the Council’s policy. However, the Council was at fault for incorrectly charging Mrs Y for care she did not receive and for failing to respond to Mr X’s complaints. The Council has already recalculated Mrs Y’s care costs. It has agreed to apologise to Mr X and pay him £100 in recognition of the avoidable time and trouble he has gone to in pursuing his complaints. It will also remind relevant staff to follow the Adult Social Care complaints policy.

The complaint

1. Mr X complained on behalf of his deceased mother, Mrs Y, about the Council’s decision to charge Mrs Y for care that was previously provided for free by the NHS. He said the Council’s policy was discriminatory and not in line with the Equality Act and that it placed his mother at a financial disadvantage.
2. In addition, he said the Council had failed to investigate and respond to his complaints about incorrect charging for Mrs Y’s care from 15 September 2019 until 20 March 2020. He said the Council had charged for care Mrs Y did not receive including whilst she was in hospital.
3. Mr X is unhappy and frustrated with the Council’s failure to respond to his complaint.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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

6. I discussed the complaint with Mr X.
7. I considered information provided by the Council.
8. I referred to the relevant legislation including the Equality Act 2012, Care Act 2014 and the Care and Support Statutory Guidance (2021) (the Guidance).
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The Public Sector Equality Duty

10. This requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:
• Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010.
• Advance equality of opportunity between people who share a protected characteristic and those who do not.
• Foster good relations between people who share a protected characteristic and those who do not.
11. The Duty means public authorities must consider equality and good relations when they develop policies and deliver services. They must also keep these issues under review.

Charging for Adult Social Care

12. Councils must assess anybody in their area who appears in need of care services. Following an assessment, the council must decide which needs are eligible for their support.
13. The council can charge an adult for the care and support it arranges or provides to meet their assessed eligible needs. Councils cannot charge for health provision as that is legally the responsibility of the NHS. However, there is an exception to this rule in that “the local authority may provide some limited healthcare services as part of a package of care and support, but only where the services provided are ‘incidental or ancillary’ (that is, relatively minor, and part of a broader package), and where the services are the type of support that an authority whose primary responsibility is to provide social services could be expected to provide”. (Care and Support Statutory Guidance, paragraph 15.31)

The Council’s guidance

14. The Council developed its Generic Domiciliary Care (GDC) policy over 15 years ago. This policy sets out what the Council considers as ‘incidental or ancillary’ health care tasks and therefore chargeable when delivered as part of a wider social care package.
• Where a service user does not have a social care package and all care provided is to support health or a medical need, the health care package is 100% health funded and free of charge to the service user.
• Where a service user has a package of social care and needs basic/general support with health-related tasks such as assistance with medication and basic dressings, these tasks are incorporated into the social care package and therefore chargeable following financial assessment.
• Where a service user has a social care package and needs specialist health care support, the Council can only charge for the social care support (following financial assessment). Healthcare remains non-chargeable.
15. The Council issued guidance about how to apply the GDC policy in 2018 as it found that it was being inconsistently implemented across the county.

The Council’s Adult Social Care complaints policy

16. This policy states the Council will acknowledge a complaint within three working days and confirm the Lead Manager for the complaint. The Lead Manager will normally contact a complainant within five working days to discuss the complaint and agree a ‘Complaints Resolution Plan’. Once the Lead Manager has completed the actions agreed, a Senior Manager reviews the steps taken to resolve the complaint and if satisfied, writes to the complainant to end the Council’s complaints process.

What happened

17. Mrs Y received visits three times a week from the district nurses to apply a prescribed cream to her legs for a chronic medical condition. The NHS funded that domiciliary care.
18. Mrs Y was admitted to hospital in 2019. She was subsequently discharged in March 2019 with a package of reablement care. Following that, the hospital home care service provided further support, funded by the NHS. Hospital home care identified Mrs Y would need ongoing daily support with her personal care when its intervention ended.
19. The Council completed a care assessment which confirmed Mrs Y needed ongoing support for thirty minutes daily. That included support applying the prescribed cream that had previously been provided by the district nurses. The Council arranged the package of care which Mrs Y self-funded.
20. In July 2019, Mr X complained to the Council that Mrs Y was being charged for support that had previously been free. The Council responded two months later and apologised for the delay in dealing with his complaint. It said the district nurses had reviewed the support they provided but as Mrs Y’s legs had improved, said their input was no-longer needed.
21. The Council said that the application of a prescribed cream in isolation would be NHS funded but as his mother had social care needs, that support could be incorporated into her social care support package and therefore chargeable. It apologised if the Council had not made that clear at the outset.
22. Mr X responded that same month. He said in a meeting in June, the district nursing team told him the NHS would continue to fund the three, thirty-minute visits a week to apply the cream for Mrs Y’s skin condition. He said the Council was blocking the funding.
23. The Council did not respond. Mr X subsequently complained further in March and July 2020. In addition to his outstanding complaint, he said the Council had incorrectly charged his mother for care when she was in hospital. Mr X brought his complaint to the Ombudsman in July 2020.
24. Following that, the Council sent a further response to Mr X’s complaint about its decision to charge Mrs Y for the support it provided for applying the prescribed cream. It said that when the hospital home care service ended, the district nurses reviewed the GDC funded support and because Mrs Y’s legs had improved, said it was no-longer required. It said the support Mrs Y required was general support as per its GDC guidance. The Council did not comment on his complaint about incorrect charging when Mrs Y was in hospital.
25. In response to my enquiries, the Council provided a response to Mr X’s complaint about charging. It accepted it had incorrectly charged him when his mother was in hospital and issued an amended invoice. It said the delays in dealing with the complaint were because the officer dealing with it had hoped to link their response with the outstanding GDC complaint. The Council had placed that response on hold because of COVID-19; and when the Council did respond to Mr X about the GDC complaint in December 2020, it did not link it with his charging complaint.
26. The Council confirmed that when it issued the further GDC guidance in 2018, it did not complete an equality review of the guidance alongside that. It said the Council was planning a full review of its GDC service and it would consider its equality duty in relation to the GDC policy as part of that review. It said that review had been delayed because of the impact of the COVID-19 pandemic.

My findings

27. The Care Act 2014 allows councils to charge for limited healthcare services which are relatively minor and part of a broader package of care. The Council’s policy reflects this. Mr X argues this policy is discriminatory because it penalises people with healthcare needs, who later develop social care and support needs.
28. We cannot determine whether a policy or a law is discriminatory and therefore unlawful- only the Courts can do that. The Council’s GDC policy reflects charging practice that is allowed for within the statutory guidance and legislation, therefore I cannot find fault with the Council’s policy.
29. The Equality Act duty says that public bodies must have regard to the aims of the equality duty not only when a policy is developed and decided upon, but also when it is implemented and reviewed. The Council established its GDC policy before the introduction of the Equality Act. Although it provided additional guidance about the policy, it has not yet completed a review of that policy. When the Council completes that review, it has confirmed it will consider the policy with regards to its equality duty. The Council is not at fault.
30. The Council incorrectly billed Mrs Y for care she received whilst in hospital. That was fault. The Council has issued an amended statement showing the correct amount owed. That remedies the injustice caused.
31. The Council’s response to Mr X’s complaints has been poor and I have seen no evidence it followed its policy for handling Adult Social Care complaints. It failed to respond when he asked it to consider his complaint further in September 2019 and failed to respond to his complaints from March and July 2020. That was fault. That has caused Mr X avoidable frustration and put him to time and trouble of having to complain further.

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Agreed action

32. Within one month of my final decision the Council has agreed to:
• Apologise to Mr X for the delays in dealing with his complaints and make a symbolic payment of £100 for the avoidable frustration, and time and trouble that has caused.
• Remind relevant staff of the requirement to follow the Adult Social Care complaint’s procedure.

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Final decision

33. The Council was at fault for charging Mrs Y for care she did not receive and failing to respond to Mr X’s complaints. It has issued an amended bill and has agreed to apologise to Mr X for the avoidable frustration its response to his complaints has caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman