Summary: Ms C complains the Council has wrongly pursued her for arrears in home support charges and withdrawn her support. The Council is at fault for failing to communicate and assess charges properly and the way in which it reassessed Ms C’s care needs. The Council has agreed to apologise to Ms C, complete a reassessment of her care needs including a support plan, and update invoices. It has also agreed to provide staff reminders, and if necessary training, about the completion of support plans.

The complaint

1. The complainant who I call Ms C complains the Council:-
1. is inappropriately chasing her for unpaid care charges dating back to 2016;
2. inappropriately withdrew services because of unpaid care charges in 2019;
3. departments failed to communicate with one another which caused confusion and a failure to communicate with Ms C properly; and,
4. has acted in an intimidatory and harassing manner in pursuing her for money.
2. Ms C says the Council’s actions have caused her anxiety. She is worried about legal action and of a debt hanging over her. Ms C says because of the withdrawal of Council support she has had the cost of privately purchased care.

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What I have investigated

3. I have not investigated matters before 2018 for the reasons set out below.

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The Ombudsman’s role and powers

4. 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)
5. We cannot question whether a council’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)
6. 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)
7. 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

8. I spoke with Ms C about her complaint and made enquiries of the Council. This included asking questions of the Council and asking for documents.
9. I considered:-
• Care Act 2014;
• Care and Support Statutory Guidance 2014 (CSSG);
• documents from the Council which included social care assessments, charging assessments and debt recovery action.
10. Ms C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

11. Ms C has physical difficulties and needs support to help her with some aspects of her daily living. The Council began providing her services in 2004.

What should have happened

Charging for social care services: the power to charge

12. 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 settings other than care homes. A council has discretion to charge for non-residential care following a person’s needs assessment. Where it decides to charge a 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)

Disability Related Expenditure

13. Where a council takes disability-related benefit into account when calculating how much a person should contribute towards the cost of their care, it should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs the council is not meeting.

Recovery of debts

14. Annex D of CSSG says councils can recover debts accrued from the non-payment of charges and make a claim to the county court for a judgement to recover the debt. However paragraph six says councils must have regard to the following principles:-
• possible debts must be discussed with the person or their representative
• the local authority must act reasonably
• arrangements for debt repayments should be agreed between the relevant parties
• repayments must be affordable
• court action should only be considered after all other reasonable avenues have been exhausted.

Reviews

15. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. CSSG says councils should review plans at least every 12 months.
16. Paragraph 8.17 CSSG says “A local authority must regularly reassess a person’s ability to meet the cost of any charges to take account of any changes to their resources. This is likely to be on an annual basis…”

Personal Budgets

17. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.

What happened

18. In 2016 the Council assessed Ms C as having to pay a contribution towards her care provision. In 2017 the Council gave Ms C a direct payment for her to buy care to meet her assessed eligible needs.
19. At the time the Council’s policy was for recipients of direct payments to receive money net of their charge. This meant recipients did not have to make a separate payment to the Council. They used “Kent Card” for direct payments. Ms C had trouble using Kent Card so the Council paid her direct payment and sent a separate monthly invoice for her assessed contribution. Ms C says the Council caused the problem with Kent Card as it passed on incorrect bank details.
20. In the Council’s response to my enquiries it acknowledged there were failures in communication when Ms C’s direct payment was initially set up about how payments should be made. It has agreed to waive Ms C’s assessed contribution of £315.62 for the period 22 May 2016 to 9 April 2017 because of its errors.
21. In April 2017 the Council tried to contact Ms C to review her financial assessment. It could not do so but revised the benefit figures using information from the Department for Work and Pensions (DWP). Ms C’s contribution increased to £71.45 per week. The Council wrote to Ms C about the charge. The Council made a further increase in March 2018 to £78.60 per week again in line with annual benefit increases. The Council wrote to Ms C about these increases which also included a number for Ms C to contact if she was unhappy with the increase.
22. In August 2019 the Council completed a direct payment review which included Ms C. It completed a further review of Ms C’s care needs without her involvement but based on her historic care needs as she refused to meet Council officers. The review identified Ms C continued to have assessed eligible needs, however her direct payment would be less than her assessed weekly charge. The Council stopped the direct payment from 9 October 2019; however it made an overpayment for advance fees for the period 9 October to 10 November. Ms C received an invoice for this period amounting to £891.17.
23. The Council issued a letter of claim on 16 December 2019 for £8606.36 this was for unpaid care support charges. This followed multiple attempts by the debt recovery team to speak with Ms C about her charge and also a request for her to complete an income and expenditure form. Ms C says she was unable to make payments due to incorrect information from the Council.
24. Ms C complained saying she felt harassed by the Council’s communication, the lack of clarity in her charges and for withdrawing her direct payment.
25. The Council responded apologising for an error in emailing which resulted in multiple emails being sent in a short period of time. It did not however change its view about the arrears or comment on Ms C’s direct payment.

Was there fault causing injustice?

26. I do not intend to consider the financial assessments completed prior to 2017. The Council has accepted fault and waived the charges for 2016-2017 as set out above. It is unlikely further investigation would achieve anything further.
27. Following an initial telephone financial assessment on 15 March 2016 the Council completed yearly reviews of the financial assessment without contacting Ms C. It has no record as to whether Ms C’s DRE, financial circumstances or benefits changed. This is not in line with paragraph 8.17 CSSG and is fault.
28. The Council did however offer Ms C opportunities throughout the period of complaint to engage in the financial assessment and a meeting in July 2019 says an officer went through the financial assessment which Ms C agreed. While Ms C may have had some uncertainty for a period of time I am unable to say this was significant.
29. The Council continued to send invoices and threatened Ms C with court. While I understand Ms C’s distress at this action the Council has an obligation to safeguard public funds. It has to pursue unpaid debts and continue to send invoices while the matter is pending. It has done this in line with CSSG detailed above.
30. Ms C says she could not make payment under an agreed plan however there is a record of the Council emailing Ms C with a number of different contact numbers she could use to make payment. It also appears she was able to make a few payments.
31. The Council has not however provided a properly completed review and support plan. There is no account of Ms C’s personal budget, and it is unclear how it has assessed Ms C’s personal budget exceeds her weekly charge. This is fault.
32. As a consequence Ms C has the injustice of not knowing whether she should have received a direct payment or whether the invoice detailing the overpayment is correct.

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Agreed action

33. The Council action to waive some charges, apologise for an occasion of excessive emails and improving how departments communicate with each other is welcomed. In addition I consider the Council should:-
1. apologise to Ms C for the failures I have identified;
2. if Ms C contacts the Council within one month of the final decision arrange a reassessment with Ms C to look at whether she has eligible needs. An officer with no prior knowledge of Ms C or the complaint should complete the assessment;
3. complete a financial assessment if Ms C has eligible care needs, and advise Ms C of her charge;
4. if the charge exceeds the cost of the direct payment advise Ms C of this and consider whether the Council should make a direct payment in these circumstances. If it concludes it is not appropriate provide an explanation to Ms C;
5. following the assessment decide whether the Council still intends to include the 2019 overpayment as part of the arrears;
6. send a revised itemised invoice to Ms C setting out her arrears taking into account any reduction the Council has made following this complaint and the reassessment;
7. remind staff about the importance of completing reviews and support plans in line with CSSG.
34. The Council should complete (a) within one month of the final decision, (b)-(f) within two months of Ms C contacting the Council and (g) within three months of the final decision. The Council should evidence its compliance to the Ombudsman.
35. In response to a draft of this statement Ms C says she will not engage with the Council for a reassessment. I have therefore left the option open for Ms C to contact the Council within one month of the final decision should she change her mind.

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Final decision

36. I have found fault in the Council’s actions which has caused Ms C injustice. I consider the agreed actions above are appropriate to remedy the complaint. I have now completed my investigation and closed the complaint.

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Parts of the complaint that I did not investigate

37. I have not investigated issues prior to 2018 this is because they are more than twelve months old and there appears to be no good reason why Ms C could not have complained sooner. This is inline with paragraph six above.

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Investigator's decision on behalf of the Ombudsman