Summary: Mr X complained the Council failed to complete a financial assessment for his mother, Mrs Y, or tell them about care costs before it arranged her package of care. The Ombudsman finds the Council was at fault for not confirming Mrs Y’s personal budget. That meant Mrs Y did not know the potential weekly cost of her care. The Council has offered to waive three weeks of care fees which remedies the injustice caused. It will also remind staff to share personal budgets when they have completed a person’s assessment.

The complaint

1. Mr X complained the Council failed to complete a financial assessment for his mother, Mrs Y, before arranging a package of care. He said the Council did not tell them the cost of care or what Mrs Y’s financial contribution would be until the package of care had been in place for three months. He said the care the Council has billed him for does not match his records of the care provided.
2. Mr X said the care provided did not meet Mrs Y’s care needs because the care staff were not trained in mental health, were often late and regularly changed.
3. Mr X said he told the Council the care being provided was not a service he wanted to pay for. He said that if he had known the Council would charge for the care, they would not have accepted it. He said his dealings with the Council have caused stress and anxiety.

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What I have investigated

4. I have investigated the complaint in paragraph one. The reasons for not investigating the complaints in paragraph two are explained at the end of this decision.

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The Ombudsman’s role and powers

5. 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)
6. 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

7. I considered the complaint provided by Mr X and the Council’s response to it.
8. I considered the case records provided by the Council including Mrs Y’s care needs assessment and case records.
9. I referred to the Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and support statutory guidance (the Guidance).
10. Mr X 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

The Law

11. Councils can make charges for care and support services they provide or arrange. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. Where the person has capital above the upper capital limit they are expected to pay the full cost of their care. Where they have capital less than the upper capital limit they can seek means-tested support from the council. When considering capital the Guidance does not give a definitive definition of what capital is but states the “local authority will need to consult the regulations and consider the individual asset on its merits”.
12. The Guidance states that a lack of financial assessment should not be a barrier to a Council arranging care and that “it is not necessary to complete those assessments before, or whilst taking action”. It goes onto state “All people receiving services in the local authority’s area are to be treated the same. In particular, how someone pays for the costs of meeting their needs- for example, in full by the person themselves- must have no influence on whether the authority fulfils the duty”.
13. Councils should ensure there is sufficient information and advice available to ensure the person needing care or their representative can understand any contributions they are asked to make.

The Council’s financial assessment

14. People can complete a financial assessment over the telephone, online or through completing a paper form and returning to the Council. The online assessment does not have to be shared with the Council but can be completed by the applicant to give an estimation of what care costs might be. If the applicant chooses to submit the form, the Council, will contact them to discuss the information in the form and confirm the amount payable.

Background

15. Mrs Y is an elderly woman. She lives at home with the support of the community mental health team (CMHT) and her son Mr X, who has power of attorney over her finances. Mrs Y pays for low-level support privately at a cost of £18.50 an hour.
16. In December 2018, Mrs Y’s husband died. That caused her mental health to deteriorate. In February 2019, the CMHT arranged for the nursing rapid response team to visit Mrs Y twice a day to support her with daily needs and its reablement team completed nightly visits. As that was a short-term service, the CMHT referred Mrs Y to the Council for a care needs assessment to identify her on-going needs.

What happened

17. The Council completed Mrs Y’s care needs assessment in February 2019. It spoke with Mr X as part of the assessment. It noted that he provided support to Mrs Y with food shopping and meeting her daily needs but that was not a regular pattern. The assessment records Mr X’s opinion of Mrs Y’s health and social care needs as different to the Council’s. The assessment notes that Mr X believed his mother’s capital was above the capital threshold but that he was not prepared to pay for social care support.
18. The Council assessed Mrs Y as needing three visits a day to meet her needs and a weekly personal budget of £370.02. The Council did not send Mr X a copy of the assessment and personal budget.
19. The case records show the Council told Mr X that he could either accept the care plan provision it had assessed Mrs Y as needing or arrange suitable care himself. The Council asked Mr X to complete an online financial assessment form so he could verify whether his mother would have to contribute to her package of care.
20. Mr X contacted the Council on 28 February 2019. He said that his mother’s finances were complicated and that he had arranged to see a financial advisor. He said he knew rapid response were withdrawing on 5 March, but he did not want the Council to arrange Mrs Y’s package of care. The Council provided Mr X with contact details for three care agencies.
21. At the start of March 2019, Mr X contacted the CMHT and said he would not be arranging his mother’s package of care. The CMHT notified the Council who contacted care providers. Following an assessment, Mr X chose the preferred care provider and the package of care started on 12 March 2019.
22. At the end of April 2019, the Council arranged a telephone financial assessment with Mr X. That took place on 15 May 2019. The Council assessed Mrs Y as having above the capital threshold and therefore required to pay for her care.
23. The Council’s case records show that Mr X did not believe Mrs Y should have to pay for her care. He said that he would not have accepted the care if he had known that Mrs Y would have to pay for it. Mr X stopped Mrs Y’s package of care on 30 May 2019.
24. The Council discussed the end of the care package with the CMHT; they agreed Mrs Y’s health and well-being had significantly improved and she no-longer needed a package of care.
25. The Council initially sent Mr X an invoice for care dated from March to the end of June 2019.

Mr X’s complaint to the Council

26. Mr X complained to the Council at the start of June 2019. He said before the Council had arranged the care, it told him the Council would pay, or that at most his mother would only need to make a contribution. He said the Council had delayed in completing the financial assessment; the social worker had not returned his calls and invoices provided by the Council were incorrect.
27. The Council accepted the social worker had not returned Mr X’s call but did not uphold the rest of Mr X’s complaint. Mr X did not agree with the Council’s decision. In August 2019, the Council allocated an investigating officer to consider Mr X’s complaint. They contacted Mr X to agree the areas of complaint for investigation. These were:
• The assessing social worker had failed to confirm to Mr X whether his deceased father’s self-invested personal pension would be considered as part of the financial assessment. He said he had asked on several occasions, but the social worker had failed to respond to him.
• The on-line assessment did not ask specifically about pensions and there was nowhere to input that information.
• As the Council had failed to provide the care costs upfront and complete the financial assessment Mrs Y should not have to pay for her care. He said that if they had known the costs involved, they would not have accepted the care and arranged alternative provision.
• The invoice from social care did not reflect the hours Mrs Y received, however he did not provide further details of the discrepancies.
28. The Council accepted it did not send Mr X a copy of the support plan with the care costs before the package of care began and that the financial assessment was not completed until after Mrs Y started receiving care. It also accepted the social worker did not always get back in touch with Mr X and they had not provided the information he asked for about the self-invested pension fund.
29. Although it accepted those faults, the Council stated:
• Mr X had been made aware at the outset if Mrs Y’s capital was over £23,250 she would have to pay the full costs of her care.
• That if he had completed the financial assessment as originally agreed in February 2019, he would have been aware of care costs earlier.
• The care company had told him of the care costs during the assessment process.
30. The Council agreed to waive Mrs Y’s care costs between 12 March 2019 till the end of March. It said that if Mr X had completed the financial assessment on-line as agreed in February, the Council would have notified him of the costs by Monday 4 March. Allowing for possible slippage the Council said that worst case scenario, it would have completed the financial assessment by 1 April 2019. The Council deducted £953.44 from the final care bill to remedy its fault.

The Council’s response to enquiries

31. The Council said that Mr X had still not provided evidence of his deceased father’s self-invested personal pension. Without further evidence it cannot review its decision whether the capital should be considered as part of the financial assessment means test.
32. The Council said it had not been told Mr X had cancelled the package of care at the end of May and had initially charged him until the end of June. It said it sent an amended invoice at the end of July of £3050.28 for the care costs between March and May 2019.
33. It said Mr X had not provided further evidence about the irregularities in charging and therefore it had not been able to review the invoice it sent him.
34. It said it had not investigated Mr X’s complaint about the care provided not meeting Mrs Y’s care needs or that the care staff were frequently late and changed. Although Mr X had raised these in an email to the Council in August, they were not included in the investigation agreed at stage three. The Council asked for the opportunity to investigate and respond to this complaint before the Ombudsman considered it.

My findings

35. The Council assessed Mrs Y as needing three visits a day in February 2019. The Council told Mr X that if Mrs X had over the capital threshold, she would have to pay for her care. The records show Mr X was not prepared to pay for Mrs Y’s care.
36. The Council has accepted the assessing social worker did not confirm whether the pension pot would be considered as part of Mrs Y’s capital. It also accepts it failed to send Mr X a copy of Mrs Y’s personal budget before it put in place a package of care. That meant he did not know what the cost of Mrs Y’s weekly care was likely to be when the Council arranged the care in March 2019. The Council was at fault.
37. There was a delay in Mr X completing the financial assessment, which meant the Council did not confirm that Mrs Y would have to pay the care costs in full until 15 May 2019. The Council was not responsible for the delay between February 2019, when the Council asked Mr X to complete an online financial assessment and the end of April 2019 when it arranged the telephone financial assessment. I understand Mr X sought independent financial advice during this period. The Council confirmed Mrs Y would need to pay the full costs of her care without delay once it had details of her capital. The Council was not at fault.
38. The Council initially overcharged for Mrs Y’s care. It sent an amended invoice in July 2019. Mr X said the invoice was still wrong and did not reflect the actual number of hours of care provided. However, he did not provide further details so the Council was not able to review the charges. The Council was not at fault.

Has the fault caused an injustice?

39. Although Mr X was clear he did not want to pay for Mrs Y’s care, when he said he would not arrange Mrs Y’s care on discharge from the rapid response service, the Council had a duty to ensure a package of care was in place, having assessed she needed this. It was entitled to charge for this.
40. That said, if the Council had told Mr X the likely costs of the care, he may have decided to arrange it himself to reduce the cost. The lack of information about the costs meant he could not make an informed choice about this.
41. When considering an appropriate remedy, the Ombudsman aims to put the person affected by the fault back into the position they would have been in if nothing had gone wrong.
42. The Council invoiced Mrs Y £3050.28 for 134 hours care. That was an average cost of £23 an hour. Mr X said he could have arranged care at £18.50 an hour; the cost of that would have been £2479 - a cost difference of £571. The Council has offered to waive the first three weeks of care costs, which amounts to £954. This is greater than the sum Mr X would have saved by arranging the care himself. Therefore, I consider this is sufficient to remedy the injustice I have identified.

Agreed action

43. Within one month of my final decision the Council has agreed to:
• Remind staff of the need to share personal budgets as soon as they have completed the care and support assessment.
• Apologise to Mr X for its failure to respond to his initial requests of information from the social worker.

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Final decision

44. The Council was at fault for failing to send Mrs Y her personal budget before arranging her care. The Council has agreed to my recommendations therefore I have completed my investigation.

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Parts of the complaint that I did not investigate

45. Mr X complained the care provided to Mrs Y failed to meet her needs. That was not an area of complaint the final investigating officer considered, and the Council has asked for the opportunity to investigate itself before the Ombudsman investigates.

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Investigator's decision on behalf of the Ombudsman