The Ombudsman's final decision
Summary: Ms X complains the Council wrongly charged them for care and support and caused them distress and uncertainty. On the basis of the information we have seen, we found the Council charged Ms X significantly more for care than it should have over a prolonged period. It also failed to respond appropriately to contacts about the matter. The fault we found caused hardship and distress. The Council applied some credits to Ms X’s account to correct the situation, apologised and offered a distress payment of £150. We found the credits do not appear to have covered the whole period concerned and should be extended. We also found the Council should make a payment of £300 to recognise the avoidable impact of the errors on Ms X.
The complaint
Ms X complains through their legal representative that the Council has wrongly charged for their care and support from October 2020 to March 2023. They say it is unclear if the Council’s financial assessment is correct, causing them distress and uncertainty.
The Ombudsman’s role and powers
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) 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(1), as amended) Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
What I have and have not investigated We would generally expect someone to raise a complaint with the Ombudsman within 12 months of being aware of the relevant events. While the earliest events of Ms X’s complaint are late, we have exercised discretion to consider the full complaint from 2020 given the circumstances and that Ms X is a vulnerable adult.
How I considered this complaint
I considered evidence provided by Ms X, their representative and the Council as well as relevant law, policy and guidance.
Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
What I found
Charging for social care services: the power to charge 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) 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.
People receiving care and support other than in a care home need to keep a certain level of income to cover their living costs. Councils’ financial assessments can take a person’s income and capital into consideration, but not the value of their home. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by national government and reviewed each year. A council can allow people to keep more than the MIG. (Care Act 2014) 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. It should explain how the assessment has been carried out, what the charge will be and how often it will be made, and explain any fluctuation in charges. 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.
Light Touch Financial Assessments In some circumstances, a local authority may choose to treat a person as if a financial assessment had been carried out. In order to do so, the local authority must be satisfied on the basis of evidence provided by the person that they can afford, and will continue to be able to afford, any charges due. This is known as a ‘light-touch’ financial assessment.
Background
The Council assessed Ms X’s needs in October 2020 and found that they had need of prompts to ensure they carried out activities of daily living and support for budgeting and money management. They did not need someone to carry out personal care or activities of daily living for them.
The assessment offered ‘residential care’ at Care Provider A. Although the assessment stated the care Ms X would receive was residential care, this was actually a supported living placement.
Ms X’s complaint Ms X moved to Care Provider B in January 2021. This was a supported living placement.
In September 2021 the Council reviewed Ms X’s care when their benefits changed.
In October 2021 Ms X signed a financial assessment form agreeing to a ‘light touch’ financial assessment. The Council says this did not proceed as a light touch assessment.
In Dec 21 a full financial assessment was conducted.
In the meantime, in January 2022 Ms X’s support worker told the Council Ms X was being charged incorrectly. They stated they were being charged for residential care, but the charges should be for semi-supported accommodation.
I understand the outcome of the December 2021 financial assessment was not sent to Ms X until April 2022.
In late April officers in the Adult Social Care (ASC) team reviewed whether Ms X was receiving residential care or had a supported living placement. They noted it was supported living but the charges were based on residential care. This meant, after their contribution to their care, Ms X was only left with the minimum amount for personal expenses (The Personal Expense Allowance or PEA). It does not appear any action was taken to correct the situation at that time.
In June and again in August Ms X’s solicitor wrote to the Council to request information and question the basis of their care charges. The solicitor’s correspondence was passed to the ASC team but not responded to.
In August 2022 the Council reviewed Ms X’s financial assessment. It says it accepted Ms X had been charged incorrectly for residential care rather than supported living. It corrected the situation, charging them correctly from 1 August 2022. A letter sent to Miss X on 24 August stated that Ms X should not have had to make any contribution to their care between January and May 2021. Ms X’s revised contribution from the end of May 2021 should have been just over £60 per week.
It was not until October 2022 that a credit note for £763.60 was created representing overcharging between 7 January 2021 and 30 May 2021.
It took until late February 2023 for the Council to create a second credit note for £6,583.62 to refund overcharging from 31 May 2021 to 31 July 2022. The Council says it sent these credit notes to Ms X at the time they were created. Ms X says they did not receive them and were unaware a credit had been added to the account. No breakdown of the credited amounts has been provided.
Although the Council created credit notes it acknowledged that it failed to reply to Ms X’s solicitor’s correspondence. Ms X explained, in the meantime, they continued to receive debt recovery correspondence because their account was in arrears. This caused them concern.
On 8 March 2023 Ms X moved to a third supported living placement. This was Care Provider C. In March 2023 a letter was sent to Ms X indicating this was correctly being charged as non-residential care. The letter set out Ms X’s assessed contribution of around £76 per week.
In May 2023 the solicitors made a complaint on Ms X’s behalf. They explained their earlier contacts and those of a support worker. They noted there had been a lack of response. The solicitor noted the relevant legislation around charging. They explained that because Ms X was charged as though they were in a residential placement, they had only been left with a Personal Expenses Allowance of £25.65 per week. In a residential setting, this assumes food and other things are provided.
Where someone’s needs are being met in a different environment to a residential care home, the charges for care are different. The law requires someone should have a minimum weekly income to cover living costs after their contribution to charges for social care (the minimum income guarantee or MIG).
In Ms X’s supported living placement they needed to buy their own food, medicine, personal hygiene items, pay for travel etc. This is what the MIG should allow for. As it was, they had been left with far less than the law required and were unable to afford the essential items they needed.
The solicitors noted, in addition, at various times the Council had stated it would pursue Ms X for payment of outstanding care invoices. It did so despite having received repeated contacts raising concern about the care fees which it failed to respond to. They raised several other procedural issues.
The Council responded to the complaint initially on 23 June 2023. It sent a further response on 8 August 2023.
The Council’s response to Ms X’s complaint ‘partially upheld’ the complaint that it had failed to follow the relevant charging legislation and it had charged Ms X too much for their care. The Council’s response stated ‘this was corrected by August 2022 for [Ms X], with charging and financial assessment applied retrospectively to [Ms X’s] accommodation starting 4 October 2021. This overpayment was subsequently credited to [Ms X’s] account…’ The Council acknowledged it had failed to respond to their solicitor’s correspondence. The Council also commented on other points made by Ms X’s solicitor. The Council apologised and offered Ms X £150 to recognise Ms X’s distress, time and trouble.
The Council sent us a statement of account. This recorded that invoices had been issued for ‘residential care’ rather than non-residential care from October 2020. The statement showed the two credits applied to cover the periods between 7 January 2021 to 31 July 2022. No credit had been applied to cover the period 23 October 2020 to 7 January 2021.
What should have happened The Council failed to follow the statutory charging guidance when deciding what Ms X’s contribution towards their care should be. Ms X’s care should have been treated as non-residential care. It was treated as a residential care placement.
The error led to a significant difference in the amount that the Council expected Ms X to contribute. The Council should have ensured they had a minimum income to pay for food and other essential items. Because it treated this as a residential placement it did not ensure Ms X had the appropriate minimum income. This was clearly fault.
The fault by the Council caused hardship to Ms X and avoidable distress because they were receiving bills and payment chasers for significantly higher care contributions than they should have been. This was made more stressful because debt built up, which the Council pursued.
It is not clear that the Council has credited overpayments made between October 2020 and January 2021. On the basis of the information we have seen, it appears that Ms X was charged for residential care for this period rather than non-residential. The Council has also not provided a breakdown of the refunds it has made to allow this to be verified. I have recommended the Council provides a breakdown and a further credit for the period of residential care charging in late October 2020.
In addition to the Council’s charging error, the Council failed to take opportunities to identify the problem. It also did not respond when it was alerted to the problem, first by a support worker in January 2022 and later by Ms X’s solicitor. When the Council did act, it did not take action promptly. It only addressed the issue in August 2022 and then delayed the appropriate refunds further. Its communication was also poor. There is some dispute as to whether the Council sent credit notes confirming the refunds when these were made. In any event, the Council did not respond to Ms X’s solicitor to explain its actions until it received a formal complaint. This too was fault.
Since the events of the complaint the Council has been charging Ms X for non-residential accommodation. However, given the confusion caused, I have recommended the Council conducts a full financial assessment to verify Ms X’s circumstances and ensure the contribution now being charged is correct.
The Council apologised in response to their complaint. I welcome that the Council has offered Ms X £150 to recognise the distress caused. Our guidance recommends payments up to £500 for distress. In view of the hardship and stress caused to Ms X, I consider the Council should pay Ms X £300.
Action
Within four weeks of our final decision: The Council should pay Ms X £300 to recognise the avoidable distress caused by overcharging them for care and for its failure to respond appropriately when it was made aware.
The Council should provide Ms X with a clear written breakdown of the amounts it credited to their account in October 2022 and February 2023.
The Council should provide a further credit for the period October 2020 to January 2021 if charges for this were also based on residential care. If this period was correctly charged at non-residential rates, it should provide a clear breakdown of these charges to Ms X to evidence this.
The Council should conduct an up to date financial assessment to confirm that the charges now being made for Ms X’s care are correct and take account of her circumstances properly.
The Council should provide us with evidence it has complied with the above actions.
Decision I find fault causing injustice.
Investigator's decision on behalf of the Ombudsman