The Ombudsman's final decision
Summary: There was fault by the Council in that it did not give the late Mrs Y details of the exact care charges before care visits started. The Council told Mrs Y in writing that she would need to pay the full cost of the care so this fault does not mean the Council should waive the cost of care, as her family would like. An apology and the offer of a repayment plan remedies the injustice from the failure in communication.
The complaint
Mrs X, complains for her late mother in law, Mrs Y. Mrs X complains the Council did not tell the family of the specific costs of care services in writing after telling them that Mrs Y would need to pay the full cost of care at home.
Mrs X says the family would not have agreed to the care services if they knew they had to pay and would like the Council to waive the charges.
The Ombudsman’s role and powers
We may investigate complaints from the person affected by the complaint issues, or from someone they authorise in writing to act for them. If the person affected cannot give their authority, we may investigate a complaint from a person we consider to be a suitable representative. (section 26A or 34C, Local Government Act 1974) 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 an organisation’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) 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)
How I considered this complaint
I read the papers put in by Mrs X and discussed the complaint with her.
I considered the Council’s comments about the complaint and any supporting documents it provided.
Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Key facts After a fall at home, Mrs Y was discharged from hospital. There was a referral to the adult social care duty team for an urgent care package on 29 July 2021.
On 29 July the social worker telephoned Mrs Y’s daughter. The notes of this telephone conversation say that ‘Mrs Y’s daughter confirmed that Mrs Y had over the savings threshold’. The notes say the social worker would ring back the next day to see if the family wanted a package of care or not. The file notes of the telephone call the next day said that ‘Mrs Y’s daughter is happy for a package of care to start for Mrs Y’. The social worker noted that she had sent a referral for a financial assessment as Mrs Y was responsible for the full cost of care as her capital was over the savings limit.
On 30 July the Council sent a letter to Mrs Y. This letter said the financial assessment meant she had to pay the full cost of care charges. Mrs X says she has not seen the letter.
Mrs X complained in November 2021 the family had not agreed to pay the care charges, they said they were told there would be a trial period free. She thinks that Mrs Y would have refused the care if she knew of the charges.
The Council accepts that it did not tell the family the exact costs of the weekly care in writing. The Council says that normally the weekly cost would be on the care and support plan, but due to the urgent care package set up via hospital at home this did not happen.
My analysis Where a council has decided to charge, it must carry out a financial assessment to decide what a person can afford to pay. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. People who have over the upper capital limit are expected to pay the full cost of their care charges.
There is written evidence the Council told Mrs Y she would need to pay the full cost of her care in the Council’s files. There is no written evidence that they were told the first 12 weeks of care would be free. So, I have to conclude, because of the written evidence, that the family were aware that they would pay the full cost of Mrs Y’s care. Even if they were wrongly told verbally that care would be free, I consider the written evidence they had to the contrary would put them on notice that this may not be the case and to double check. I can find no fault by the Council on this point.
The Council was at fault, as it did not tell the family of the exact costs of the weekly care. Mrs X says the Council should waive the care costs as the family were not aware of the exact amount. I do not agree this is reasonable. The family were aware they needed to pay the full cost of the care and the number of hours the carers were visiting. Mrs Y received the care and so it is reasonable the family pay the charges they were eligible to pay after the financial assessment.
Mrs X says the family would not have agreed to the care if they had been aware of the cost. I note her view, but on the balance of probabilities there is written evidence that they were informed that they would need to pay the cost of the care. There is no written evidence the Council told them it would be free. So, I do consider that in accepting the visits from the carers they accepted a service which they had been informed in writing was chargeable.
I have considered whether the family are due a remedy due to the Council’s failure to tell them of the exact weekly cost of the care. On balance I do not consider this has caused significant injustice that would warrant a remedy, other than an apology and the offer of a repayment plan. The Council was clear that Mrs Y would need to pay the cost of her care and I do not consider there is enough evidence to prove that the family would have refused the care if a weekly charge amount had been supplied. I appreciate we can never know this for sure, but as Mrs Y received the care services I cannot see why the Council should waive the charges.
Agreed action
The Council apologises to Mrs X for the failure to tell the family of the exact cost of care and offers a repayment plan for the outstanding charges within one month of the date of the decision on this complaint.
Final decision
I have completed my investigation of this complaint. This complaint is upheld as there was fault by the Council. The remedy above remedies the injustice identified from the failure to inform the family of the exact cost of care.
Investigator's decision on behalf of the Ombudsman