The Ombudsman's final decision
Summary: Ms D complained about the way the Council dealt with her father’s care charges after he was discharged from hospital. We found the Council at fault for failing to provide enough information about the care charges before the costs were incurred. The Council will apologise and waive the fees to acknowledge the injustice it caused.
The complaint
Ms D complains the Council replaced free NHS carers for her father (Mr X), with paid for care, without her agreement or any financial assessment. She says she cancelled the service as soon as she was able to, but the Council has continued to pursue payment for care which was not agreed to.
Ms D would like the Council to write off all outstanding sums.
The Ombudsman’s role and powers
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) 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 have considered information provided by the Council and Ms D, alongside the relevant law and guidance.
Ms D and the Council had the opportunity to comment on a draft decision before this final decision is made.
What I found
Law and Guidance The Health and Care Act 2014 and the Care and Support Statutory Guidance The Care Act provides a single legal framework for charging for care and support under sections 14 and 17. It enables a local authority to decide whether or not to charge a person when it is arranging to meet a person’s care and support needs or a carer’s support needs.
Where a local authority arranges care and support to meet a person’s needs, it may charge the adult, except where the local authority is required to arrange care and support free of charge. The local authority must not charge for certain types of care and support which must be arranged free.
This includes intermediate care, including reablement, which must be provided free of charge for up to 6 weeks. However, local authorities must have regard to the guidance on preventative support set out in Chapter 2. This sets out that neither should have a strict time limit but should reflect the needs of the person. Local authorities therefore may wish to apply their discretion to offer this free of charge for longer than 6 weeks where there are clear preventative benefits, such as when a person has recently become visually impaired.
Where a local authority has decided to charge, except where a light touch assessment is permissible, it must carry out a financial assessment of what the person can afford to pay and, once complete, it must give a written record of that assessment to the person. This could be provided alongside a person’s care and support plan or separately, including via online means. It should explain how the assessment has been carried out, what the charge will be and how often it will be made, and if there is any fluctuation in charges, the reason. The local authority should ensure that this is provided in a manner that the person can easily understand, in line with its duties on providing information and advice.
The main circumstances in which a local authority may consider carrying out a light-touch financial assessment are: Where a person has significant financial resources and does not wish to undergo a full financial assessment for personal reasons but wishes nonetheless to access local authority support in meeting their needs. In these situations, the local authority may accept other evidence in lieu of carrying out the financial assessment and consider the person to have financial resources above the upper limit.
Where the local authority charges a small or nominal amount for a particular service (for example, for subsidised services) which a person is clearly able to meet and would clearly have the relevant minimum income left, and carrying out a financial assessment would be disproportionate.
When an individual is in receipt of benefits which demonstrate that they would not be able to contribute towards their care and support costs. This might include income from Jobseeker’s Allowance.
Where the local authority is going to meet the person’s needs, and it proposes to undertake a light-touch financial assessment, it should take steps to assure itself that the person concerned is willing, and will continue to be willing, to pay all charges due. It must also remember that it is responsible for ensuring that people are not charged more than it is reasonable for them to pay. Where a person does not agree to the charges that they have been assessed as being able to afford to pay under this route, a full financial assessment may be needed.
When deciding whether or not to undertake a light-touch financial assessment, a local authority should consider both the level of the charge it proposes to make, as well as the evidence or other certification the person is able to provide. They must also inform the person when a light-touch assessment has taken place and make clear that the person has the right to request a full financial assessment should they so wish, as well as making sure they have access to sufficient information and advice, including the option of independent financial information and advice.
What happened Mr X was hospitalised in June 2023; when he was discharged, he was provided with two days of care free of charge to help with his discharge.
One day after he was discharged, the Council called Ms D and told her Mr X would need a package of care. It explained there is a £23,250 threshold and that Mr X may have to pay for care. It noted that Ms D confirmed Mr X is not a self-funder.
Two days after Mr X was discharged, the care provision began, which Ms D says neither she nor her father realised would be charged for.
About a week later, the Council provided information on charging for care and a financial assessment form to be completed to allow the Council to calculate what Mr X would need to pay toward his care.
Just over a week later, Ms D confirmed they would like to cancel the package of care as it was not working for her father.
In November 2023, the Council wrote to Ms D to confirm her father’s weekly contribution had been assessed at £119.35 weekly, and that this was on the basis of a light touch financial assessment as she had not provided all of the information the Council had requested.
Analysis and Findings Mr X has been charged for approximately two weeks of care. The question is whether the Council has applied its charges appropriately.
The Council is expected to provide information about charges early on and it is reasonable to expect the information provided to include: that most people have to contribute towards their care to some extent; the upper and lower capital limits; when a person might be a self-funder typically, most of a person’s income goes towards their care; how the council calculates care costs when a person owns their home; and the typical cost of different care packages in the area such as residential care, nursing care, the hourly charge for care at home in the week and on the weekend.
We expect the information to be provided in writing as much as possible. We sometimes see cases where social workers have informal conversations about paying for care with a person or their family members. Councils should be able to provide detailed records of those conversations, setting out what issues were covered. I have been provided only with a very brief note of the informal conversation the Council had with Ms D before the care began.
Councils should be prepared to provide additional information or detail where a person’s requirements have changed during their care journey, and they are still waiting for a financial assessment. This is particularly important where someone is moving from care exempt from charging (for example reablement) to a chargeable service.
While ‘early on’ is not definitive, it is evident in this case that charges were incurred before the associated costs had been explained. I have not seen that the Council explained Mr X would have two days of free care followed by care which would be charged for. There is no reason to assume therefore that Mr X or his daughter could have known when the free care would end and when charges may begin.
The Council did not put Mr X or Ms D in a position to make an informed decision about his care. It is not the case here that the Council felt Mr X needed care regardless of the cost implications, as Ms D was able to end the care soon after it began. This suggests that had they known from the outset, they would not have chosen to accept care beyond the free provision.
Ms D has explained that neither she nor Mr X could afford to pay for carers, so had she been asked whether they wished to enter a paid for care arrangement, they would have immediately declined. She says they were never given this option.
The only evidence of the Council providing information before the charges were applied, is the very brief telephone note referenced earlier. That note only says that Ms D confirmed Mr X would not be a self-funder. I have not seen that the Council explained that he may have to contribute and what that contribution might be. There is no written information or confirmation of what the Council planned to implement until after Mr X had been charged for care which I cannot see he agreed to pay for. This is fault.
Ms D has explained the charge is not one Mr X or she can easily pay. She says they have been caused significant worry about how they will pay the bill. She says they were fully aware they could not afford this bill so would have declined the care from the outset rather than incur the charges. The debt is therefore an injustice caused by the identified fault.
Agreed action
Within one month of the decision, the Council will: apologise to Ms D and Mr X and waive all outstanding fees; Within three months of the decision, the Council will: consider whether its current processes include providing meaningful costs information at the outset, and unless there is a good reason, before costs are incurred. If they do not, revise this process to ensure reasonably estimated cost information is provided at the earliest stage possible.
The Council should provide us with evidence it has complied with the above actions.
Final decision
We found the Council is at fault and has caused an injustice, and recommended remedies to address this.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman