Summary: Mrs X complained about the way the Council provided information about Mr Y’s care costs, and delays in the financial assessment. This meant Mrs X did not understand Mr Y would be charged for his respite stay and she was caused significant stress by an unexpected bill. We find the Council was at fault in the way it communicated with Mrs X, and in its failure to advise them of the cost of the care Mr Y received. We recommend the Council waive 50% of the cost of Mr Y’s respite stay and ensure it communicates properly in future. It should also take action to ensure it completes financial assessments before arranging care services where possible.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained on behalf of herself and her husband, Mr Y, that the Council:
• did not send Mrs X adequate, accessible information about Mr Y’s respite and the cost of this.
• did not complete a financial assessment or provide an estimate of the cost of care before Mr Y’s respite began.
2. Mrs X says this caused them a lot of upset and would like the Council to reconsider the care costs. They do not believe they should pay the full amount.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
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)
5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended). Mr Y has given his consent for Mrs X to complain on his behalf.

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How I considered this complaint

6. I considered information from the Complainant and from the Council.
7. I sent both parties a copy of my revised draft decision for comment and took account of the comments I received in response.

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What I found

Background

8. The Care Act 2014 sets out local authorities’ duties around adult social care. The Care and Support statutory guidance sets out how the Care Act should be applied.
9. Sections 9 and 10 of the 2014 Act say local authorities “must assess” the needs of any adult who appears to need care and support. Authorities must do this regardless of whether they think the person has eligible needs and regardless of the person’s finances.
10. Section 18 sets out local authorities’ duty to meet needs for care and support. A local authority must meet an adult’s needs for care and support if the adult is ordinarily resident in its area and certain conditions are met. This includes if the person is satisfied, through carrying out a financial assessment, that the person’s finances are at, or below, the financial limit.
11. Section 19 sets out local authorities’ power to meet needs for care and support. This includes enabling local authorities to meet an adult’s urgent needs for care and support when it has not carried out a needs assessment or financial assessment.
12. The Care Act 2014 and the corresponding Statutory Guidance says councils should complete a financial assessment before arranging care services. It also indicates that, in cases when this is not possible, for instance in an emergency, a council should give the person a reasonable estimate of likely charges before they have to decide what support they want the Council to arrange. Furthermore, the Council is still required to complete the formal financial assessment as quickly as possible after that.

Charging for temporary residential care

13. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period, such as respite care, or there is doubt that permanent admission is required. The Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance 2014 set out charging rules for temporary residential care. When the Council arranges a temporary care home placement, it has to follow these rules when undertaking a financial assessment to determine how much a person has to pay towards the costs of this stay.

What happened

14. Mr Y had health conditions which cause him significant difficulty with mobility, frequent falls, concentration and memory. He could not leave the house and would forget to eat, drink, and take his medication. Mrs X was his main carer and was blind.
15. In June 2020, Mrs X telephoned the Council because she had a hip replacement in March and no help to care for Mr Y when she was discharged from hospital. Mr Y was at home alone while she was in hospital and did not manage well so Mrs X went home from hospital early to care for him. Now she needed a break as she said she could not cope much longer. Mrs X said she thought Mr Y would need full time care soon so wanted to try Home A, a care home near their house. She asked for four weeks respite a year.
16. Mrs X had powers of attorney for Mr Y for property and finances and health and welfare. Although Mrs X had this authority, Mr Y had capacity to make decisions himself at the time of these events.
17. Towards the end of July, the Council completed a care needs assessment on Mr Y over the phone. Just over a week later it noted a call with Mrs X discussing the “finance assessment process”. The Council advised Mrs X it would send out the charging letter for signing. The letter said “KCC will usually expect to pay “£410.78 for the level of care which you require. You will be required to make a financial contribution towards this amount to be paid by KCC based on an assessment of your finances”. It also gave the following list under the heading “Paying for your care home temporary respite placement”:
1. KCC will arrange a financial assessment to see how much you will contribute towards the care home fees…The amount you will contribute will depend on your weekly income how much you have in savings and whether you own other assets…
2. KCC will pay the care home direct for the full amount due at the weekly price and will collect your contribution towards the price of the home from you every four weeks by sending a bill, known as a ‘Kent Care Invoice’”.
3. Where there is an agreed third party top up contribution, it will be collected directly by KCC from the person who has agreed to pay this.
18. Mr Y signed this letter and returned it.
19. In August, the Council spoke to Mrs X. She advised she was unable to take notes due to being blind. She told the Council they would prefer home A which was near their home but when advised this would need a £700 top up, she said there was no one able to pay this. The Council records note Mrs X was “very concerned about the funding and would like a finance assessment prior to placement”. The Council told her the finance team would not contact her until the placement started.
20. Three days later, Mrs X called again to discuss the arrangements. The records note she asked for four weeks respite in total and said she had booked a break away for three weeks in September. Mrs X asked about home A and the Council told her she would have to pay a £700 top up charge which she said she could not pay. Mrs X says she did not understand that a top up charge was extra to Mr Y’s contribution. When the officer explained she would not have to pay that at another home, which she then chose, she understood that to mean she would not have to pay anything. She wanted a local option as Mr Y was likely to need long term care soon and her sight loss meant she needed him to be somewhere easy to get to. The records note “tried explaining that we would only be able to consider this as a [short term bed] for now and if it was to be agreed for [long term care] things would be reconsidered then”. Mrs X asked for a call back the following day. The following day the Council called Mrs X back with details of possible care homes and Mrs X agreed to consider Home B. The Council’s written record of this conversation states Mrs X requested 21 days from mid September. Mrs X says the Council did not confirm the discussion in writing although she had advised that she could not take notes. She also says the Council told her it did not send her written information because of her sight loss. She says in a telephone call, a manager advised her staff had been briefed to ensure this did not happen again. In its response to my enquiries, the Council says it never withheld information because of her sight loss. However, it apologises that, prior to 6 November, it did not offer any alternative means of correspondence.
21. Home A was less than two miles from Mr Y and Mrs X’s home; Home B was four miles away. In mid August, Mrs X agreed to Home B. The Care Provider assessed Mr Y on 20 August and offered Mr Y 21 days at £470 per week from the second week of September. It confirmed the cost on 26 August. The Council agreed the funding and in September, telephoned Home B to check that Mr Y began his stay as planned. Home B confirmed that he had.
22. At the end of September, Home B contacted the Council advising that Mr Y had left due to confusion about funding. Mrs X had arranged for him to go home a day early when she realized he would have to pay. The Council called to complete the financial assessment with Mrs X, but she had only just arrived home from her break and was not expecting the call. The Council had written to her a week earlier, while she was away, advising of the appointment; she had not yet seen this. She was also not well and waiting for a taxi to take her for a COVID-19 test. She told the Council she had been told she did not have to pay anything. It said someone would contact her to discuss the charging again. The Council then referred to this occasion as Mrs X refusing to complete the finance assessment.
23. In October, the Council wrote to Mrs X saying an officer would contact her to complete the finance assessment. It said, “Please be aware that failure to complete the assessment may result in [Mr Y] being charged the full cost of the services received”. Mrs X complained to the Council and said she understood Mr Y would not have to pay anything for the respite.
24. In November, the Council completed the financial assessment and found Mr Y should contribute £216.46 per week towards his respite stay. It wrote to Mrs X to explain how it had calculated this. The Council’s investigation into Mrs X’s complaint about the charge had found it was “evident” Mrs X “had not understood the information she had been given”.
25. In response to my enquiries, the Council said: “It is not possible for a financial assessment to be completed by the Council until the respite placement has been identified.”. It said the reason for this was “until a suitable placement is identified and respite care costs established, it cannot be determined whether any Third Party Top Up arrangement is required.”.
26. In response to my draft decision and further enquiries, the Council said it did not need to provide Mr Y with information about the cost in advance of his respite stay. It said this was because it had provided care and support under section 19 of the Care Act 2014. It said this also applied to completing the care and support plan and that the duty to do this did not arise until the financial assessment was completed. When the Council set out the timeline for the financial assessment process, it started when the placement began. I asked if it was the Council’s standard response to tell people that the finance team will not contact them until the placement has started. It said it is not it’s standard response. It also said the Council “recognises” that providing clarity around assessment process and potential costs “would be helpful” and is “an important principle”. It said it would review its processes and information around this.

Was there fault which caused injustice?

27. I do not know whether the Council withheld hard copy information because of Mrs X’s sight loss because there is no evidence of this in the Council’s records. Mrs X’s account differs significantly from the Council’s account. However, the Council did acknowledge that it had not offered her information in an alternative format until 6 November. This was fault and caused Mrs Y significant undue stress. Knowing that Mrs X is unable to make notes herself, it should also have ensured that telephone conversations were confirmed in writing, in an accessible format.
28. The Council’s records of the conversations Mrs X had with an officer who referred to a top up, suggest Mrs X did not understand a top up is in addition to any contribution. The Council’s own investigation found she had not understood, and the officer noted the difficulty she had explaining it. On the balance of probabilities, I have concluded that Mrs X understood that if Mr Y went to Home B, he would not have to pay. The Council says its records do not reflect that Mr Y and Mrs X thought they would not have to pay at all and knew they would need to have a financial assessment. I accept this. However, the conversation Mrs X had when trying to find out how much they would need to pay, led to her to understand if Mr Y went to Home B, he would not have to pay. The Council did not then communicate with Mrs X about charges or financial assessment until after she had gone on her break. I am satisfied the Council was at fault here.
29. Mr Y and Mrs X had to combine resources to understand and manage their situation; neither one could deal with this alone. The Council did not recognise the difficulty they were having in understanding the process and the charging information. It was aware of the support Mrs X provided to Mr Y and that Mr Y had difficulty with concentration and memory because of his health condition. It was also aware that Mrs X was highly stressed, blind, and anxious about the cost of the respite placement yet did not even advise her of the approximate cost. It could have told her the likely maximum cost in June when she first enquired about respite. It did not give her an estimated cost in August when it first knew where Mr Y was likely to go, or when the placement was booked and the cost confirmed, also in August. It waited until Mr Y had returned from his respite stay before it completed the financial assessment. The Council should have carried out a financial assessment at the time it carried out the needs assessment or soon after. It would then have had a duty to meet his needs under section 18. Section 19 was only engaged because it did not complete the financial assessment when it should have done. The Council was at fault here. This caused Mr Y a significant and avoidable financial injustice and Mrs X significant undue stress. This was because they could not make an informed decision about how long Mr Y should spend in respite care. However, I acknowledge the Council has said this is not its usual approach and has said it will review its processes and information around this.
30. I accept the Council’s position that it is likely Mrs X would still have taken a break, as she has done this year, if the Council had advised the cost. To reflect this, I will recommend the Council waive 50% of the charges.

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Agreed action

31. To remedy the injustice identified above, I recommended the Council:
• Apologise to Mr Y and Mrs X in writing setting out the faults identified above and the actions it will take to avoid similar problems in future.
• Waive 50% of the cost of Mr Y’s respite stay.
• Pay Mrs X £150 for the significant, undue stress it caused her.
• Ensure that it provides Mrs X with accessible records of information and confirmation of discussions in future.
• Ensure people are advised of the cost of care as soon as possible and complete financial assessments before a person receives care where possible.
• Provide training and/or refresher training to ensure staff are aware of the need to offer reasonable adjustments and how to do this.
• Complete the first three recommendations within one month of my final decision and the remaining actions within two months.
• Submit evidence of these actions to me within two months of my final decision. Suitable evidence would include:
1. A copy of the apology letter.
2. Confirmation of the waiver and payment to Mrs X.
3. An action plan showing progress on the remaining actions.

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Final decision

32. I have completed my investigation and uphold Mrs X’s complaint that the Council:
• did not send Mrs X adequate, accessible information about Mr Y’s respite and the cost of this.
• did not complete a financial assessment or provide an estimate of the cost of care before Mr Y’s respite began.

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Investigator's decision on behalf of the Ombudsman