Summary: Ms Y and Mr Z complained the Council failed to explain the charges due for their late mother’s home care and delayed sending her invoices. The Council was at fault. It delayed sending invoices and was not clear about when she had to start paying for care. It has agreed to waive 50% of the charges and to review its procedures to ensure service users sign and are sent copies of their needs’ assessments and support plans.

The complaint

1. Ms Y and Mr Z complained, on behalf of their late mother Mrs X, the Council failed to explain the charges due for the home care she received on leaving hospital. It then failed to invoice her until nine months after her original discharge. Mrs X said she stopped receiving home care as soon as she knew the Council expected her to pay for it. She said she would not have had the care at all had the Council explained it expected her to pay.

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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 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) I have exercised discretion to investigate back to 2016 because Mrs X believed the issue was resolved in November 2017 and says the Council did not chase for payment again until a year later, in November 2018. Mrs X then made further complaints to the Council.
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. 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

6. Mrs X died during the investigation. I have considered information provided by Mrs X before she died, and information from Ms Y and Mr Z.
7. I have considered the information provided by the Council including copies of correspondence and its response to our enquiries.
8. I gave Ms Y, Mr Z and the Council an opportunity to comment on a draft of this decision and considered their comments in reaching a final decision.

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What I found

9. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
10. The Care and Support (Eligibility Criteria) Regulations 2014 sets out the eligibility threshold for adults with care and support needs. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how these impact on their wellbeing. To have needs which are eligible for support, the following must apply:
1. The needs must arise from or be related to a physical or mental impairment or illness.
2. Because of the needs, the adult must be unable to achieve two or more of the following:
1. managing and maintaining nutrition;
2. maintaining personal hygiene;
3. managing toilet needs;
4. being appropriately clothed;
5. being able to make use of the adult’s home safely;
6. maintaining a habitable home environment;
7. developing and maintaining family or other personal relationships;
8. accessing and engaging in work, training, education or volunteering;
9. making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
10. carrying out any caring responsibilities the adult has for a child.
3. Because of not achieving these outcomes, there is likely to be, a significant impact on the adult’s well-being.
11. Where local authorities have determined that a person has any eligible needs, they must meet these needs. When a local authority has decided a person is or is not eligible for support it must provide the person to whom the determination relates with a copy of its decision.
12. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014,
    section 14)
13. Councils must assess a person’s finances to decide what contribution he or she should make to the cost of their care. (Care Act 2014, section 17)
14. Intermediate care and reablement support services are for people after they have left hospital or when they are at risk of having to go into hospital. They are time limited and aim to help a person to preserve or regain the ability to live independently. Regulations say local authorities must not charge for the first six weeks of intermediate care or reablement services. They may make a charge where services are provided beyond the first six weeks, but should consider continuing providing them without charge because of the preventive benefits. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)
15. “NHS continuing healthcare (NHS CHC) is a package of care arranged and funded solely by the health service in England for a person aged 18 or over to meet physical or mental health needs that have arisen because of disability, accident, or illness.” (NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012).

What happened

16. In 2016 Mrs X lived in extra care housing. She went into hospital for major surgery. The hospital considered Mrs X medically fit for discharge in
    November 2016. It arranged an Occupational Therapy assessment which identified Mrs X required support with washing, dressing and meal preparation. The Council carried out an assessment of her needs. It assessed she initially needed support in the mornings with washing, dressing and having breakfast and that the package need only be short term as Mrs X was a little frail following her surgery. The Council recorded that, as Mrs X would receive some therapy and health monitoring at home alongside her care, her care package would be ‘a rehab and recoup package’ for up to six weeks. The Council has also referred to the care as intermediate care which was free for Mrs X.
17. The assessment noted Mrs X ‘agreed to a financial assessment if the care becomes chargeable after the 6 week point’. The Council’s case record notes Mrs X was aware she would not need to fund her initial care at home. The support plan completed at the time set out the cost per week as £77.42. The care started in November. There is no evidence Mrs X received or signed the assessment or support plan.
18. On the assessment it also stated the assessor gave Mrs X a leaflet called “What You Should Expect to Pay for Care Services”. Mrs X also signed a form agreeing to a visit from a Council Benefits and Assessment Officer. The form was titled “Paying some money (a financial contribution) towards the support I need”. On the same form she signed to say she was involved in an assessment of her needs and understood a copy of it would be posted to her once finalised.
19. Council officers reviewed Mrs X’s care package twice while she was at home and agreed to continue it until 23 December 2016 when she was going to see family for Christmas. The care stopped on 23 December as agreed.
20. The Council’s records show an officer spoke to Ms Y later in December 2016. The record says Ms Y said Mrs X had been in hospital over Christmas, ‘the care had stopped, but she could see that her mum mother needed ongoing support but was worried about how much things would cost now that her income had dropped. [Ms Y] asked that a financial assessment be requested for long term care at home so that the family could see how much her mum would have to pay’.
21. The notes record an officer telephoned Mrs X in early January. The notes record Mrs X had been in hospital and felt very weak. She felt she needed someone to help with personal care and meals. In early January 2017, a Council officer assessed Mrs X’s care needs. The officer completed a needs assessment. The officer had answered ‘yes’ to the question ‘is this an assessment for short term reablement service’. The assessment noted ‘I feel I will require support in the morning and evening as I am very weak and cannot even make myself a cup of tea at the moment’. The assessment noted Ms X ‘has capacity to make all her own decisions and organise her life’. It noted Mrs X ‘agreed to a financial assessment’. The Council arranged for carers to provide that care from 9 January 2017 onwards. The care package cost £77.35 per week. The support plan stated Mrs X ‘has agreed to a financial assessment and is aware she may need to contribute towards the cost of her care’.
22. A Council officer visited Mrs X later in January 2017 and carried out a financial assessment. The Council provided a copy letter to Mrs X which confirms the result of the assessment. It said Mrs X would have to pay a maximum of £114.52 a week for her care.
23. Mr Z queried the figures used so in February 2017 a Council officer visited again to check the figures used in the financial assessment. The officer recalculated the figures, sent a revised calculation and then discussed the revised figures further with Mrs X. The letter set out the different impact on her contribution based on whether or not her husband’s occupational pension was included in the calculations and stated ‘the actual cost of your support can be found on your support plan’. The revised figures showed the maximum Mrs X should contribute was £146.28 per week.
24. In March 2017 the Council reviewed Mrs X’s care package to ensure it was appropriately meeting her needs. This assessment makes no reference to short term reablement. The notes of the visit record Mrs X ‘would like this to continue as she does not feel able to manage independently’. The assessment said the package should stay the same. The support plan noted Mrs X ‘has agreed to a financial assessment and is aware she may need to contribute towards the cost of her care’.
25. In July 2017, the care manager where Mrs X lived, requested a reassessment as they questioned whether Mrs X still needed the support package. The Council carried out a reassessment of Mrs X’s needs in July 2017. The assessment noted Mrs X required support with some day to day tasks due to being unable to exert herself as she became breathless. It noted she appreciated the support she was receiving as it allowed her to have energy to do other things for herself. The Council agreed Mrs X still had the same support needs and would review it again at the end of the year.
26. In August 2017, the Council sent Mrs X the first invoice for her care, backdated to January 2017. The Council accepts this was late and has apologised for that. A Council officer spoke to Mrs X in September 2017. Mrs X said she would not pay as she did not have the money for it. The notes record Mrs X said she did not want the care anymore and wanted it to finish that week, so the care package stopped in September 2017. Mrs X’s total contributions amounted to around £2,400.
27. A Council officer wrote to Mrs X in September 2017 and explained the Council could set up a payment plan to pay off the debt. Mrs X telephoned the Council and said she would not pay, with or without a payment plan, and wanted to make a formal complaint. The Council wrote to confirm what was discussed. The letter set out that the cost of Ms X’s care package was less than her calculated contribution so she would be invoiced for the total cost of the care. The letter also confirmed the Council had cancelled the care package at Ms X’s request and that she could contact the Council to agree a repayment plan.
28. This was confirmed again in November 2017. The Council officer explained how Mrs X could contact the Council to set up a payment plan to pay off the debt.
29. The Council officer arranged to visit Mrs X with their manager. Ms Y was also present. Mrs X requested copies of the financial assessment sent to her or to Mr Z, on her behalf.
30. The Council wrote to Mrs X in early November with a final notice for the care contribution charges due. Mrs X emailed the Council in response requesting written confirmation she agreed to and understood the charges. Mrs X said if she was aware of the charges, she would have clarified the situation and reduced or stopped her care. Mrs X said she had received a letter in February 2017 setting out her maximum contribution, but this referred to the actual cost being detailed in her support plan. Mrs X said she had no record of an agreed support plan or having received details of the actual cost.
31. The Council officer replied by email to Mrs X in November 2017. It sent Mrs X a copy of the financial information which it sent to her in February 2017. This included a financial declaration which was to be signed and returned. However, the Council had no record of receiving a signed copy and accepted it had not chased this up. The Council said it had a copy of a financial declaration signed by Mrs X in November 2016 when Mrs X agreed to a financial assessment. They also sent Mrs X a copy of the support plan which should have been sent to her in January/February 2017.
32. Mrs X refused to pay, and Mr Z emailed the Council in November 2017 raising his concerns.
33. In November 2018 the Council wrote to Mrs X requesting payment of the care fees. Mrs X responded and said she thought the matter was resolved. The Council registered this as a complaint and responded to Mrs X in December 2018. It set out that prior to her hospital discharge Mrs X had an assessment and signed a financial declaration agreeing to a financial assessment and paying a contribution towards her care. It referred to the financial assessment completed in January 2017 and apologised for the delay in sending the invoice. It said this was due to a delay by the care provider in returning a signed contract to the Council. The Council accepted Mrs X had not signed the support plan but had signed the financial declaration to say she would be financially assessed and had received letters about her contribution from the finance team so it would not waiver the charges.
34. Mrs X remained unhappy. She considered the Council should have completed a continuing healthcare checklist when she left hospital and so she should have received free care. The Council sent further letters in January and February 2019. It explained there was no evidence to suggest her needs were above those the Council could meet and explained that a CHC checklist would be for the NHS to complete in the hospital. It remained of the view Mrs X was liable for the fees. It then referred her to the Ombudsman.

Findings

35. The hospital completed an occupational therapy assessment which showed Mrs X had needs for support with personal care and meal preparation which are social care needs. Mrs X did not require support to meet health needs but to meet identified social care needs ‘arising from or related to a physical or mental impairment or illness’. She did not require a CHC assessment. The Council was not at fault.
36. When Mrs X left hospital, the Council assessed her needs and identified she did meet the criteria for reablement, that is a short-term care package to assist her with regaining the ability to live independently. It made Mrs X aware she was entitled to reablement and provided this service up until Mrs X went to stay with her son at Christmas 2016.
37. After a further period of hospitalisation, the Council reassessed Mrs X’s care needs. The assessment completed in January 2017 stated ‘yes’ to the question ‘is this an assessment for short term reablement service’. There is no evidence the Council explained to Mrs X that at this point she was required to pay for the care and that this was not another six-week period of reablement, or that it assessed whether reablement was an option. There is no evidence it provided her with a copy of the needs assessment or support plan setting out the cost of the care package. This lack of clarity is fault.
38. Mrs X had agreed to a financial assessment and the Council carried this out in January 2017. This set out the maximum amount Mrs X would have to contribute to the cost of her care. Mrs X queried this and there was discussion over the figures and the effect of her husband’s pension on these. The Council’s letter of February 2019 set out Mrs X’s maximum contribution but also set out that ‘the cost of the support can be found in the support plan’. The Council failed to ensure Mrs X was aware of when she had to start paying towards her care package and what the cost was. That is fault.
39. The Council delayed invoicing Mrs X for the cost of the care package until August 2017, eight months after it started charging for the care package. This delay is fault. The Council accepts that it should have made Mrs X aware of the invoicing delay and should have kept her informed of this. When Mrs X first became aware of the cost, she cancelled the care package.
40. Mrs X raised her concerns with the Council in November 2017 after it sent her a final demand. The Council corresponded with Mrs X at that time but took no further action to pursue the debt until a year later in November 2018. This delay is fault.
41. I cannot say that had Mrs X been advised of the cost at the start that she would not have gone ahead with the care package. Mrs X’s daughter, Ms Y, had contacted the Council in January 2017 to request a financial assessment for Mrs X as she considered Mrs X needed some support. Mrs X had been in hospital and did have identified care needs. In addition, Mrs X had agreed to a financial assessment and was aware that she would need to contribute at some point.
42. In July 2017, the care manager had queried whether Mrs X needed the care package. I therefore consider, on the balance of probabilities, had Mrs X been aware of the cost and that she was required to pay for the care package when the Council reassessed her needs at that time, it is likely she would have stopped the care package.
43. In response to my enquiries the Council said it had reviewed its procedures. It now invoices based on planned care and will make any required adjustments once it receives the actual hours from the care provider. This means where a care provider has not submitted the actual hours the system will produce an automatic bill using planned service calculations. This action is appropriate and should prevent a similar fault happening in future.

Agreed action

44. The Council has agreed, within one month of the final decision on this complaint, to waive 50% of Mrs X’s care charges.
45. The Council has also agreed, within two months of the final decision on this complaint, to review its procedures to ensure it records when service users are given a copy of the assessments and care plans and to ensure service users, or their representatives, sign a copy of the needs assessment and support plans.

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Final decision

46. I have completed my investigation. There was fault leading to injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman