Summary: The Ombudsman has found fault. There was a lack of detail in Dr B’s care plans and the plans were not sufficiently updated to reflect his changing needs. The Council did not provide a personal budget. The Council’s information on charging was inadequate and did not explain how the invoices had been calculated. The Council also charged Dr B for care he did not receive and it did not properly monitor whether the agency was providing the care it was meant to provide. The Council did not provide a proper response to the complaint and there were very long delays in its response. The Council has agreed to improve its services, apologise and pay the family £500.

The complaint

1. Dr B, who has sadly died, is represented by his wife, Mrs B and his son in law, Mr C. They say the Council failed to provide adequate care plans, that its billing was unclear and that the Council charged them for care that did not happen. They also say the Council never properly responded to their complaints.

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The Ombudsman’s role and powers

2. 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)
3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local
4. 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

5. I have discussed the complaint with Mrs B and Mr C. I have considered the documents that they and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

6. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge.

Duty to assess

7. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs and a personal budget which sets out the costs to meet the needs.

Financial assessment

8. Councils must carry out a financial assessment to make a decision about the charges. This will assess the person’s capital and income.
9. If a person has capital over the threshold of £23,250, the council may ask them to pay for their own care at home (known as self-funding).
10. If a person has capital below the threshold and is eligible for council funding, they may have to pay a contribution from their income towards the fees.
11. People with eligible needs and financial assets above the upper capital threshold may ask the local authority to meet their needs. This could be for a variety of reasons such as the person finding the system too difficult to navigate, or wishing to take advantage of the local authority’s knowledge of the local market of care and support services. In such circumstances, the person remains responsible for paying for the cost of their care and support, but the local authority takes on the responsibility for meeting those needs.

Principles - charging

12. The Guidance sets out the principles councils must follow if they decide to charge for services:
• Be comprehensive, to reduce variation in the way people are assessed and charged.
• Be clear and transparent, so people know what they will be charged.
• Apply the charging rules equally so those with similar needs are treated the same and minimise anomalies between different care settings.

What happened

13. Dr B was admitted to hospital following a stroke. The Council’s social worker assessed Dr B’s needs in November 2016 to decide what support he needed when he returned home.
14. The care plan said Dr B needed support with personal care (washing and getting dressed) and toilet management, but did not give details of the hours or how the support would be provided. It said the personal budget was £203, but there was no explanation how this figure was calculated. It said the plan would be reviewed in 6 weeks.
15. The Council carried out an assessment of Dr B’s finances in December 2016 and concluded that Dr B should self-fund his care as he had capital over the threshold of £23,250.
16. There was a further assessment of Dr B’s needs in February 2017. The social worker noted:
• Mrs B wanted the call time to change from 10 am to 9 am and she wanted the invoices to be fixed.
• Two carers attended twice a day to assist in washing and dressing, medication and mobility.
• Dr B was being charged double, due to an error on the system.
17. An occupational therapist assessed Dr B in April 2017. She said Dr B was unable to mobilise and needed the support of two carers to transfer. The OT was going to order some further equipment and parts.
18. The OT assessed Dr B in November 2017. Dr B said that only one carer had been attending calls in the last two weeks. Mrs B wanted to keep the morning call.
19. The social worker carried out a review assessment of Dr B’s needs in December 2017. Dr B was receiving support twice a day and Mrs B wanted to change the agency as she said she had lost confidence in them.
20. In January 2018 the Council assessed Dr B’s finances over the telephone and Mrs B said his capital had dropped below the £23,250 threshold. The Council would therefore pay for the care but Dr B would pay a contribution from his income. The Council wrote to confirm this.
21. Mrs B sent in further financial information in the following months. The Council revised its financial assessment and concluded that Dr B had capital over the threshold. He was therefore still a self-funder and had to continue to pay for the care package. The Council wrote to Dr B in May 2018 to confirm this.
22. The OT assessed Dr B in April 2018 and produced a more detailed care plan. She said only one carer was needed twice a day, 6 days a week. The morning call was for 45 minutes and the evening call for 30 minutes. The personal budget was £126 per week, but there was no explanation how this figure was calculated.

The complaint

23. Mrs B called the Council on 31 August 2018 to complain. She said:
• Dr B had never received a care package that fully met his needs. The social worker set up a package in the hospital and the agency then said the package was not suitable. Another agency then had to take over and put in a different better package. After that another agency started providing care but it ignored the assessment and the better package.
• Dr B had paid for care that was not received. They had been billed for 2 carers when there was only 1 carer.
• She did not understand why the Council was sending the bills, when Dr B was self-funding. She had also paid the agency directly so was worried about paying double. She had raised this many times with the Council but never received a proper reply.
• Dr B’s capital was now under the threshold and he should be eligible for Council funding.
24. The Council’s manager met with Mrs B to discuss the complaint. The director wrote to Mrs B on 23 November 2018. The director said:
• At the meeting Mrs B had provided evidence of an incomplete assessment and inaccurate records relating to Dr B’s needs. Mrs B had previously written to the Council with this evidence and the Council had never responded or amended the record. The director apologised for this failure.
• Mrs B said there were times when the care provided did not meet Dr B’s needs on time and often the carers did not stay for the required time. The director apologised for this. She said this complaint would be further investigated by the manager.
• Mrs B was not satisfied with the Council’s financial assessment. The manager said the assessment was correct but a further assessment would be carried out to help Mrs B understand the assessment.
25. In the letter, the director said the manager would do the following:
• Reassess Dr B’s finances.
• Make enquiries about the quality of Dr B’s needs assessment from the service manager.
• Liaise with Commissioning about the contract with the agency of December 2016.
• Liaise with the agency about the poor service Dr B had received.
26. Once these investigations had been done, the manager would write to Mrs B to inform her of the outcome.
27. The letter concluded by saying that: ‘I hope your feel a thorough investigation has been undertaken to date.’ and suggested this was the final response as the director informed Mrs B of her right to go to the Ombudsman. The letter said Mrs B could contact the manager to discuss the response.
28. The manager never wrote to Mrs B and there is no evidence that any of the actions that were agreed were carried out.
29. Mr C contacted the Council in March 2019 and wrote to the Council on 2 April 2019 to express his frustration at the lack of progress by the Council. He said Mrs B was strongly of the view there had been no investigation into the complaint so far, despite the letter claiming there had been. She had tried to speak to the manager as advised in the letter, but had been unable to get through to him or receive any call back.
30. Sadly, Dr B had died. Mr C wanted the Council to respond to Mrs B’s complaint and asked for a statement of the amounts that were owing and copies of the unpaid invoices. Mr C said there was an outstanding invoice of £4,715.
31. The Council wrote back on 11 April 2019 saying it would carry out an investigation into his complaint about the poor quality of care and the inaccuracy of the bills and respond within 20 days.
32. Mr C continued to ask for the copies of the invoices and wrote to the Council on 8 May 2019 as there had been no response to the complaint. The manager apologised for the delay on 17 May 2019 and said:
• He had asked the finance department to send the invoices that Mr C had asked for.
• He had spoken to the last agency which provided care to Dr B, and they asked for specific dates when they did not deliver the care they were contracted to provide as it would be difficult for them to review all the records.
• The manager wanted to resolve the issues and suggested to have a discussion with Mr C to agree an approach to the complaint.
33. The manager emailed Mr C on 14 June 2019 after having this discussion with him and said:
• It was difficult for him to comment on or to investigate the care that was provided in 2016 and 2017. He wanted to support Mr C and Mrs B in their concerns but was not sure whether it was practical or reasonable to do this considering the time that had elapsed.
34. The manager agreed to:
• Respond to the letter of complaint.
• Explain what care was provided to Dr B, including costs, hours and what the changes were.
• Explain what adjustments were applied.
35. On 18 June 2019, the manager sent Mr C a schedule of the care. This schedule set out what care Dr B should have received every week including the number of carers, the hours, the times of the calls and the weekly cost. There was still no breakdown on how the weekly cost was calculated.
36. Another manager provided the Council’s response to the complaint on 20 June 2019 and said:
• He apologised for the ‘exceptionally long time’ to respond.
• Mr C had agreed that the agency would need to have the dates of when they were late or calls were missed, in order to investigate this complaint. Mr C had agreed to discuss this with Mrs B and would let the manager know the outcome.
• The complaint had been partially upheld as Mr C and Mrs B had difficulty in contacting the manager. The Council had not carried out an investigation into the care provider being late or missing calls as Mrs B had not provided specific dates and times.
37. Mr C was not satisfied with the outcome. He said the Council’s ‘idea of an investigation’ was ‘simply to write, apologise and then state the investigation is closed and then not to reply to or answer phone messages.’
38. Mr C then used the schedule the Council sent on 18 June 2019 with the care Dr B should have received and compared it with the actual care he received. He sent the Council a detailed breakdown of all the times the agency failed to provide care that it had been contracted to provide on 24 June 2019. I will not list all the discrepancies here, but these are a few examples.:
• From November 2017 to May 2018, the Council charged Dr B for three calls a day when only two calls took place as the afternoon call had been cancelled.
• The Council charged for two carers, but a lot of the time only carer attended.
• The Council charged Dr B for calls lasting 45 minutes, from December 2017 to June 2018, but the calls were only for 30 minutes.
39. The Council replied on 12 July 2019 and said it accepted the schedule Mr C had sent and would provide a refund as a result. The Council then reduced the outstanding balance from £4,745 to £2,542. Mr C asked for a breakdown on how this figure was calculated, but the Council did not provide this.

The Ombudsman’s investigation

40. In its response to the Ombudsman’s question, the Council admitted it failed to write to Mrs B as promised in its November 2018 letter. It apologised for this ‘inefficiency.’
41. I asked the Council what information it had sent Dr B about the charges. The Council referred to its letters in January and May 2018 after it carried out the financial assessment of Dr B.
42. In response to the criticism of its care plans, the Council said the care plans met Dr B’s needs but the care plans changed because Dr B’s needs changed. It said the OT provided equipment which meant Dr B no longer needed 2 carers and Mrs B was able to provide more support than was initially planned.
43. I asked the Council to explain how the figure to reduce the outstanding invoice was calculated. The Council admitted that its information was not always correct and that adjustments were required. It accepted all of the proposed amendments by Mr C. It did not provide a calculation of how the reduction was done, despite several requests.
44. The Council explained its process of monitoring the invoices. It said it expected home care providers to send a weekly report that detailed permanent and temporary changes to a person’s schedule. It apologised that, in Dr B’s case, the Council’s information system did not reflect the actual care delivered.
45. The Council said it would write to home care providers to remind them of the importance of sending through these weekly reports. It had introduced a new client information system which would improve the information recorded and how providers notified the Council of changes.
46. In response to the lack of transparency in the billing, it said this was ‘mainly due to the changes in [Dr B’s] income and savings which affected his financial contribution.’

Analysis

47. I have summarised the complaint. Mrs B and Mr C say:
• The Council failed to properly assess Dr B and provide him with a care plan that met his changing needs. The care plan was not clear on what was being provided.
• The Council’s financial information on what the charges were and how the invoices were calculated was unclear.
• The Council charged Dr B for care that he did not receive.
• The Council failed to properly investigate their complaint and there were unacceptable delays in its response.

The failures in the Council’s care plan

48. The Council did not really investigate this aspect of the complaint in its original response. In its response to the Ombudsman it said the plan was appropriate but frequently changed because of changes in circumstances.
49. It is not for the Ombudsman to say, of course, what Dr B’s care plan should have been. I have investigated whether the assessments and plans were in line with the statutory requirements, guidance and policies.
50. The Council’s assessment and care plan should have set out Dr B’s needs for care and support and how these needs would be met. The plan should say the hours of support that would be provided. The Council should provide a personal budget and this should explain how the cost of the support was calculated, setting out the hourly rate of support and the calculations.
51. The early care plans that the Council provided did not have this detail and this was fault. There was no explanation of how many hours support the support workers would provide, or how the budget was calculated and what the hourly rate was.
52. I will touch upon the problem with the lack of clarity in the Council’s invoices in more detail later, but it was linked to the underlying problem with the care plans. Because it was not clear what the agency was meant to provide, this contributed to the continuous errors in the charging.
53. The Council did not produce a care plan with the required detail until April 2018 and this plan still did not have a proper personal budget.
54. It appears it was not until the Council provided Mr C with a schedule of the care in June 2019 in response to Mr C’s complaint, that the family had all the information that should have been in the care plans. This lack of comprehensive care plans made it difficult for the family to know whether the care that was provided was in line with the care plan.

Lack of transparency in financial information

55. There was significant fault in the information the Council provided about the charges. The Guidance says transparency should be one of the key goals in the Council’s charging policy and there was a lack of transparency in the Council’s charging.
56. I asked the Council for proof of evidence that it had explained how the charges were calculated to the family. It replied by referring to the letters of January 2018 and May 2018. But these letters were not really relevant. They did not explain how the invoices were calculated. I accept there was a short period between January and May 2018 when the Council was carrying out a further financial assessment and its position on charging changed. However, my understanding is that, in the end, Dr B was charged as a self-funder throughout the time that the Council was involved. The problem was not Dr B’s financial status, but the lack of clarity in the invoices.
57. I therefore do not accept the Council’s explanation that the changes in Dr B’s billing were ‘mainly due to the changes in [Dr B’s] income and savings which affected his financial contribution.’
58. What the Council should have done was to explain how many hours of care the agency provided each week and what the hourly rate was. This then should have resulted in the personal budget. This basic information was not included in any of its letters or invoices. Therefore, it was impossible for anybody to know whether the invoices were correct.
59. As the care plan never said how many hours the agency was meant to provide, it was difficult to untangle what happened. I accept the care package was changed to meet the changing circumstances, but the care plans did not reflect the changes and did not contain the necessary detail in terms of hours of support and calculation of the personal budget. The agencies did not always provide the care in line with the care plan, but it is impossible for me to say whether the fault lies entirely with the Council or whether the agencies were partly to blame as the documentation is so poor and this is fault.
60. For example, Dr B was charged for 3 visits a day from November 2017 to May 2018, but in reality the agency only carried out 2 visits a day. I cannot say whether the problem lay with the Council’s finance department or the agency. This does not make a great difference from the Ombudsman’s point of view in finding fault. The Ombudsman’s position is that when a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. Therefore the Council is still at fault.
61. I have also seen the spreadsheets the Council sent which are lists of invoices and then refunds, with no explanation. They are far from transparent.
62. I raised these issues with the Council and it agreed that its invoicing was inadequate.
63. I am also concerned that there was apparently no form of audit by the Council to check whether the various agencies were providing the care that the Council were charging Dr B for. The Council seemed to rely on the agency to let them know if it had provided less or more care than contracted. If Mr C had not brought this to the attention of the Council, the error would never have been picked up and Dr B would have paid for care he did not receive.

Complaint response

64. I agree with Mrs B and Mr C that the Council did not provide an appropriate response to the complaint. In its response of November 2018, the Council said it would further investigate the complaints about the quality of the needs assessment, the quality of the care itself and the issues about the carers not providing the care they had been contracted to provide.
65. That was a large part, if not the majority of Mrs B’s complaint therefore I do not understand how the Council then concluded its letter by saying it had carried out a ‘thorough investigation’ and was closing the complaint. The only complaint that had been investigated was whether the financial assessment was correct. The Council should have kept the complaint open until the further responses it had promised, were provided.
66. The Council then did not provide any further response. It was only after Mr C chased the Council in March 2019 that the Council said it would further investigate. However even the Council’s June 2019 response did not really add much more to the understanding of the complaint.
67. I accept that the Council could not properly investigate the complaint that the agencies were not providing care in line with the schedule, without being given the dates. However, the Council did not inform the family of the need to provide this information until May 2019. It did not provide the schedule of care which Mr C needed to make the comparison with the care provided until 18 June 2019. It closed the complaint on 20 June 2019 because Mr C had not provided the information. That was an unrealistic timescale. Mr C then provided the list of the discrepancies on 24 June 2019 which the Council accepted without question.
68. Overall, I therefore agree with Mrs B and Mr C that the Council did not properly investigate their complaint or provide any substantive response and that there were unacceptable long delays and this was fault.

Injustice

69. I have considered the injustice that has been suffered through the faults. The family has suffered distress by the lack of clarity and detail in the care plans and the Council’s poor communication in relation to this. Added to this was the lack of transparency in the personal budget and the invoices the Council was sending and the fact that the agencies were not providing the care that Dr B was invoiced for. Mrs B says she continued to raise her concerns over the years but was not listened to.
70. This caused a lot of distress over the years and, even when Mrs B and then Mr C raised formal complaints, there was no real response which led to more distress. They had to continue to pursue the Council to receive a response and they incurred time and trouble in doing so.
71. I do note that the Council has, in the end, accepted Mr C’s schedule of care and reimbursed him the full amount without questioning the dates. This is positive and I have taken this into account when deciding the injustice and remedy.

Council’s response after the draft decision

72. The Council has accepted the fault the Ombudsman has found. It has accepted the recommendations in terms of service improvement and explained it had already started some of the work the Ombudsman recommended. I have summarised the service improvement work the Council has reviewed or is in the process of reviewing.
73. The Council has made the following changes in its procedures:

Changes in the complaints procedure

• It carried out a review of its complaints procedure in July 2019.
• The Council now chases up outstanding actions with the relevant teams on a monthly basis.
• The Council now monitors the response times for complaints and issues a weekly summary report of all complaints to give management oversight.
• The Council now maintains contact with complainants so that they are kept informed when there are any delays.

Lack of clarity in care plans

• From October 2019 social workers have to complete care and support plans electronically as part of the workflow process. Personal budget information is a requirement of the new system process so a care plan cannot be signed off without this information.
• The Council started a staff development programme which included providing training for staff members on the completion of care and support planning.

Lack of clarity in invoicing

• The Council has received public feedback about the lack of detail contained in its invoices. The Council has commissioned a review of its systems. The aim is to transform the current service to improve the client’s experience. The project is paying particular attention to the Council’s internal and external communication and will also focus on invoices and how the Council can be more transparent in its billing.

Lack of audit

• The Council is undertaking work to have the majority of care at home delivered by contracted providers and for those providers to adhere to specification as laid out in their contracts which will help the Council to monitor services more effectively. Where it is necessary to commission a service from a non-contracted provider, the Council would expect that provider to also adhere to the Council’s terms and conditions and service specification.

Agreed action

74. The Council has already started the work to improve its services. The Council has agreed to take the following actions.
75. It will (within one month):
• Apologise in writing to Mrs B and Mr C for the faults.
• Pay the family £350 to reflect the fault in its failure to provide the service that it should have done and the distress this caused.
• Pay the family £150 to reflect the time and trouble they had to go through to pursue the complaint.
76. It will (within three months):
• Remind the relevant staff of the importance of providing a detailed care plan and a personal budget which gives an explanation of how the budget was calculated.
• As part of its review of how it invoices clients, it will ensure that its invoices are transparent so that it is clear what the amount relates to. It will also ensure appropriate auditing to ensure that the agencies are providing the care that is set out in the care plan and the invoices.

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Final decision

77. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman