Summary: The Council acknowledges that it charged Mr B too much when it reduced the duration of his home care calls, and that it did not resolve this as soon as it could when Mrs B complained. The Council has agreed to apologise to Mr and Mrs B and make symbolic payments to both in recognition of the distress the overpayment caused them, and the time and trouble they were put to in having to complain. However, there was no fault when the Council did not reduce the care package or the charges for an earlier period.

The complaint

1. Mrs X complains on behalf of her parents, Mr and Mrs B. She says the Council:
• overcharged Mr B when the home care hours were reduced, and failed to adjust his account when Mrs B complained about this;
• did not properly assess Mr B to make sure that his care package would meet his needs, and did not properly review this when Mrs B asked it to in June 2022; and
• has charged him too much for care that he cancelled for the dates 24 to 26 December 2022 and 1 January 2023.
2. Mrs X says that as a result of the Council’s failings her parents have been overcharged for the care received. They are distressed that they cannot trust the billing to make automated payments and instead, had to allow arrears to accrue. Mrs X has to keep a separate record so her parents can make periodic payments manually to ensure that they are not falling behind.

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The Ombudsman’s role and powers

3. 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)
4. 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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How I considered this complaint

5. I considered the information provided by Mrs X and discussed the issues with him. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered the comments of both parties before issuing this final decision.

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What I found

The law and guidance

6. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
7. 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. 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)

What happened

8. Mr B needed home care to help with his personal care needs. He had been receiving some free short-term care in April 2022. This was daily visits of 45 minutes. The Council and Mr B decided that he needed long term care and this started in May 2022. The Council assessed that he would need daily carer visits of 45 minutes to meet his care needs. Mr B was liable to pay for all of his care. The Council commissioned the care with a Provider, Cherish UK Ltd (Trafford). The Provider submits the hours of care provided to the Council, and then the Council raises the invoices for Mr B to pay.
9. Mrs X tells me that from the beginning, her parents found that carers were not taking 45 minutes to complete all the care tasks and sometimes were taking less than 30 minutes daily. Mrs B complained to the Provider that they were being charged too much, and that there were too many different carers. Mrs B told the Council that the Provider had not responded to her concerns.
10. The Council’s case notes show that it discussed the care with Mrs B in June and July. Mrs B asked for respite care during these conversations but according to the Council’s records, did not mention that the full care was not being provided or that the calls were too short. In July, the Provider told Mrs B that it would send regular carers.
11. In August, Mrs B told the Council that the charging was not correct. It raised this with the Provider and with its commissioning team. The Provider gave the Council details of the care calls and these were between 31 and 45 minutes. The Council confirmed that charges are made per 15 minutes, rounded up to the next 15-minute interval. However, the Council agreed that care calls should be reduced to 30 minutes daily.
12. In September, Mrs B complained to the Council that they were still being charged too much. The Council investigated Mrs B’s complaint. In November, the Council decided that the Provider had charged correctly, had already apologised for the numerous carers, and had corrected this.
13. In December, Mrs X took up the complaint on her parents’ behalf. When the Council investigated Mrs X’s complaint, it found that although the visits had reduced in duration from the beginning of September 2022, this had not been changed on the system and Mr B was still being charged for more hours than he was receiving. The mistake was due to an oversight. The Council corrected the error at the end of January 2023. It apologised to Mr and Mrs B, and to Mrs X. It said that it should have realised this when it responded to Mrs B’s complaint in November.
14. In the meantime, Mrs X had complained to the Ombudsman. She included that they had cancelled her father’s care for four days over the Christmas period but were still being charged for this. The Council was not aware of this problem until the Ombudsman contacted it. The Council raised the overcharge with the Provider. The Provider discovered that it had wrongly charged Mr B for the cancelled calls. It has adjusted the account and will apologise to Mr B.
15. In response to my enquiries, the Council has acknowledged that the reduction in hours was not actioned in good time and that it had charged too much from September 2022. It has also changed its practices so that care plans can be quickly updated when there are minor changes to the care provided. This should avoid overcharging errors. It has adjusted Mr B’s account.
16. The Council has also acknowledged that it should have reviewed Mr B’s care provision after it reduced the calls to 30 minutes to make sure this was still meeting his care needs. It has raised this with its Adult Social Care Quality & Improvement Board. The Council will complete the review as soon as possible.
17. In addition, the Council has offered to apologise and make the payments to Mr and Mrs B as set out below. These actions are a reasonable means to remedy the injustice based on the fault it has identified in the billing and complaints process from September 2022 onwards.
18. However, Mrs B and Mrs X also say that concerns were raised with the Provider that the care calls were not 45 minutes as agreed from May 2022. And so I have also looked at whether Council should have reduced the care calls sooner, and whether it can rely on the Provider’s information that the calls were over 30 minutes long.
19. The Council set up the care provision of 45 minutes based on the short-term care. It was reasonable for it to assume that each call would take around 45 minutes. If Mrs B contacted the care provider about the duration of the calls, I would expect it to contact the Council so that it could reassess whether these needed to be reduced. However, I note that the Council’s records of its contact with Mrs B in June and July do not suggest that Mrs B raised the duration of the calls with the Council then.
20. My understanding is that the care records are updated by the carers via an app. However, this was not always available. Although the Provider’s records show that most calls were between 31 and 45 minutes, some of the calls are recorded as lasting several hours, and a very small number of calls are recorded as lasting a very short amount of time. There are no reasons recorded for the vast difference in duration and I suspect that some of these times were added manually, or that the calls were not recorded accurately on the app by the carers.
21. The key question is whether the Provider or the Council should have used the information available to reduce the charges for the period from May to September. I have carefully considered this. I have taken into account that the Provider’s records appear to show that 45-minute charges were generally correct, but the records may not be accurate. I have also taken into account that Mrs B did not raise this with the Council despite that she had ongoing contact with it. On balance, I cannot say that the calls were less than 30 minutes, or that the Council should have known or acted on this sooner. The information available to it was limited and contradictory. There was no fault by the Council when it decided to charge for 45-minute calls from May to September 2022. It reduced the chargeable duration in good time, when the issues were raised with it.
22. Mrs B and Mrs X also raised that the Provider had asked Mrs B to access the contact, care plan and all records via its app. This was not suitable for Mrs B who does not have a smartphone. The Council says the Provider should have paper-based alternatives in place. Mrs B requested a paper contract. The Council says it is not clear that she requested any ongoing records be paper based. However, given that the Provider knew that Mrs B could not access the contract electronically I would expect it to be more proactive in checking whether she needed help with other aspects of the system. There is no information to suggest that either the Council or the Care Provider did this.

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Agreed action

23. In response to my enquiries, the Council has acknowledged that it made errors, and that communication between it and the Provider should have been much clearer. It has made improvements to its processes as a result. The Council has agreed to:
• Apologise to Mr and Mrs B for the faults it has identified;
• Pay £250 to Mr B as a symbolic payment in recognition of the distress it caused him; and
• Pay £250 to Mrs B in recognition of the time and trouble it put her to when she had to raise a complaint with it.
24. The Council will also remind the Care Provider that it should check whether customers can access the app or need an alternative, and share this with relevant staff within the Council.
25. The Council should provide us with evidence it has complied with the above actions within one month of the date of this decision.

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Final decision

26. I have completed my investigation. There was fault by the Council causing an injustice to Mr and Mrs B.

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Investigator's decision on behalf of the Ombudsman