Summary: Mrs X complained on behalf of Mr Y about how the Council handled Mr Y’s care charges. There was fault by the Council in how it delayed changing and informing Mrs X about Mr Y’s increased contributions. The Council also failed to explain Mr Y’s revised charges to Mrs X in a timely manner. This caused Mrs X uncertainty, confusion and the time and trouble chasing and complaining to the Council. The Council will take action to remedy the injustice caused.

The complaint

1. Mrs X complained on behalf of Mr Y. Mrs X has power of attorney for Mr Y and she is his representative.
2. Mrs X complained about how the Council handled Mr Y’s care charges. In particular the Council’s:

• eight-month delay in changing Mr Y’s care fees contribution and its delay in notifying him and/or Mrs X of his revised contribution
• failure to explain Mr Y’s revised charges when he became entitled to the State Retirement Pension
• failure to inform Mr Y and/or Mrs X of its debt recovery action before its implementation.

3. Mrs X said the matter caused her and Mr Y anxiety and uncertainty. Mrs X said she has also been unable to finalise Mr Y’s estate.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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 an organisation’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 discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries.
8. I sent Mrs X and the Council a copy of my draft decision and considered the comments received before reaching a final decision.

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What I found

Legislation and Guidance

9. The Care Act 2014, the Care and Support Statutory Guidance 2014 and the Care 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.
10. The upper capital limit is currently set at £23,250 and the lower at £14,250. A person with assets above the upper capital limit are required to pay for their own care. Even if the capital is below the threshold of £23,250, residents may have to pay a contribution from their income towards their care.
11. Councils must carry out a financial assessment to make a decision about the charges. This will assess the person’s capital and income and decide who will pay for the eligible care needs. Councils can charge for care services.
12. Charges may only cover the cost the council incurs. (Care Act 2014, s.14 (1,4))
13. Once a council completes the financial assessment, it must give a written record of the assessment to the person. It should explain how the assessment has been carried out, what the charge will be, how often it will be made and if there is any fluctuation in charges, the reason. Councils should ensure that this is provided in a manner that the person can easily understand, in line with its duties on providing information and advice.

Council’s Residential Charging Policy

14. A financial assessment is a ‘means’ test to assess a person’s ability to pay the costs of their care, considering income, capital, allowable costs and allowances. A reassessment will be carried out each year to recalculate charges. If requested, savings/capital can be reassessed on an ad-hoc basis.
15. Once the financial assessment is complete, the person will be notified in writing by the Council’s Financial Assessment Team of their decision.
16. If assessed to pay a contribution towards care and support, a person will be invoiced usually by the Council.
17. The Council takes a firm but fair approach to managing debt… if debt starts to build up, it is very important the Council take action as quickly as possible, so the debt does not become unmanageable.
18. If a person dies and they owe money to the Council, the Council will write to executors of the will or next of kin, informing of the monies owed.
19. The Council will actively pursue the recovery of debt accrued as a result of non‑payment of accounts or invoices.

What happened

20. This chronology includes key events in this case and does not cover everything that happened.
21. Mr Y received residential care services. Due to a Government temporary COVID‑19 funding arrangement, Mr Y was not required to contribute towards his care fees.
22. On 17 January 2021, Mr Y became entitled to his state pension award.
23. In February 2021, the temporary COVID-19 funding arrangement for Mr Y ended. So, Mr Y was required to start making contributions towards his care fees. The Council notified Mrs X of the change. It explained Mr Y’s care fees contribution of £183.31 per week would be applied from 12 February 2021 which would be collected every four weeks.
24. In March 2021, following Mr Y’s receipt of his first state pension payment, Mrs X informed the Council about the increase in Mr Y’s income. She enclosed a copy of Mr Y’s state pension award notification.
25. In April 2021, the Council carried out an annual reassessment of contribution towards residential home fees. On 6 April 2021, the Council sent Mrs X a letter about Mr Y’s new weekly care fees contribution of £184.33. It said the charges would take effect from 12 April 2021. The Council enclosed a copy of Mr Y’s new assessment.
26. In May 2021, the Council wrote to Mrs X. It said the Council carried out a reassessment of Mr Y’s care fees contribution. This was due to Mr Y’s increased income from his state pension award. The Council included a breakdown of Mr Y’s income and stated his new reassessed care charges as follows:

• from 18 January 2021 = £239.21 per week
• from 12 April 2021 = £244.06 per week

27. In November 2021, the Council sent an adjustment letter to Mrs X. It said Mr Y had been undercharged for his care fees contribution from 12 February 2021 to 2 May 2021. The Council said the undercharged fees of £650.35 would be added to Mr Y’s next invoice.
28. In December 2021, Mrs X contacted the Council about its adjustment letter. She questioned why it took the Council so long to notify her of the undercharged fees. She said the Council did not apologise for the delay and it did not explain what led to Mr Y’s undercharged fees. The Council explained the delay was due to the introduction of its new management system which created a backlog of financial reassessments. Mrs X said she did not know why Mr Y’s care fees contribution had changed. She asked the Council to provide her with a written explanation.
29. The Council issued Mr Y’s invoice of £1626.59 in December 2021 and sent a first reminder at the start of January 2022.
30. In January 2022, Mrs X made a formal complaint to the Council. She complained about the Council’s delay with adjusting Mr Y’s contribution, its lack of apology and explanation about Mr Y’s increased contribution. Mrs X said the introduction of the Council’s new system was not an acceptable reason for its delay. She said Mr Y had a small amount of disposable income so the £650.35 undercharged fee would have a huge effect on his finances. Mrs X asked if the Council had any time limits it applied to the recovery of undercharged fees especially where the fault/delay was not caused by the service user.
31. The Council sent a final reminder of Mr Y’s £1626.59 invoice on 20 January 2022.
32. Mr Y passed away and Mrs X notified the Council. She told the Council she wished to carry on with the formal complaint.
33. In March 2022, the Council replied to Mrs X’s complaint. The Council acknowledged there was a delay from when Mrs X informed it of Mr Y’s increased income in March 2021 and when it issued its adjustment letter in November 2021. The Council maintained its delay with carrying out financial assessments, reassessments and issuing of invoices were due to the implementation of a new management system. It said the introduction, subsequent changes and removal of the COVID-19 funding arrangement also significantly increased its workload. The Council acknowledged its November 2021 adjustment letter should have explained the reasons for its delay with applying Mr Y’s increased contributions and should have included an apology. It said it also missed the opportunity to have apologised and given an explanation to Mrs X when she contacted it in December 2021. The Council upheld Mrs X’s complaint and apologised for the inconvenience caused to Mrs X for its identified failings.
34. The Council confirmed there were no time limits within which it must calculate and implement changes in circumstances resulting in an increased or reduced service user contribution. The Council explained when a delay or error occurs, it strives to put the service user back in the position they would have been had the delay/error not occurred. It said it does not routinely issue payments as goodwill gestures for the time and trouble complainants had taken to make a complaint. But that it looks to acknowledge any errors, apologise, and take remedial actions to correct the identified errors and learn from it. The Council confirmed Mr Y was correctly charged for the care services he received. It said Mr Y’s case did not warrant a further remedy and the £650.35 undercharged fees would not be waived. The Council said it continued to reduce backlogs and minimise the number of service users who experienced delays with getting notification about increases in their contributions. It confirmed its adjustment letter had been updated to reflect the changes in charges with an apology and explanation.
35. Mrs X remained dissatisfied with the Council’s response. She informed the Council she would be escalating her complaint to the Ombudsman.
36. In March 2022, following Mrs X’s request, the Council sent her Mr Y’s final account showing his outstanding care fees of £3,962.59. The total figure included Mr Y’s £650.35 undercharged fees.
37. Mrs X made a complaint to the Ombudsman.
38. At the end of March and mid-April 2022, the Council sent Mrs X a first and final reminder respectively in relation to Mr Y’s outstanding care fees of £3,962.59.
39. Mrs X raised concerns about the Council’s reminder letters referring to the outstanding fees and stating the Council would proceed to a debt collection procedure if she failed to make the payment. Mrs X said it was distressing receiving further letters of such nature despite the fact she had notified the Council she had made a complaint to the Ombudsman. She said her escalation to the Ombudsman should have prevented further automated letters being sent to her about the matter. The Council confirmed no further reminder letters would be sent to Mrs X pending the outcome of the Ombudsman’s consideration.
40. In April 2022, Mrs X made a payment of £3,312.24 towards the total outstanding amount of £3,962.59. This was less Mr Y’s undercharged fees of £650.35.

Analysis

41. The Council was at fault for its delay in changing and informing Mrs X about Mr Y’s increased care fees contribution. There was approximately an eight-month delay. This was from March 2021 when Mrs X informed the Council about Mr Y’s state pension award to November 2021 when the Council sent its adjustment letter to Mrs X. This was fault. This caused uncertainty to Mrs X.
42. The Council also failed to explain Mr Y’s £650.35 undercharged care fees to Mrs X in its November 2021 adjustment letter and when she contacted it in December 2021. Although the Council sent Mrs X a letter with Mr Y’s reassessed charges in May 2021, it should have clearly told her about the undercharged care fees at the time. This was fault. This caused confusion to Mrs X and the time and trouble she was put to complaining and chasing the Council for an explanation.
43. I acknowledge in its response to Mrs X’s complaint, the Council accepted fault and apologised for its failings as identified above. Following our draft decision statement, the Council has agreed to an improved remedy for the identified faults and injustice caused as listed under the agreed section below. The Council confirmed it will introduce online financial assessments in the next financial year. It explained the new process would give its service users an early indication of their financial charges when they put in relevant details via the new online financial assessments.
44. I appreciate it may have been distressing for Mrs X to have received reminders about Mr Y’s outstanding care fees after she had escalated her complaint to the Ombudsman. Mr Y’s £650.35 undercharged care fees contribution was as a result of an increase in his income from his state pension award. I have no ground to direct the Council to write off the £650.35 as it is within the Council’s right to charge for the care services provided to service users. Mr Y would always have had to pay that amount even if the Council had not delayed informing Mrs X of his undercharged fees. The Council also has a right to undertake debt recovery action in cases of non‑payment of outstanding fees. This was not fault. The Ombudsman cannot question the merits of the Council’s decisions where there is no evidence of procedural fault.
45. I note the Council’s reminder letters about outstanding care fees do not mention or explain its debt recovery procedure. Although this is not fault but the Council might want to consider including its debt recovery procedure in its reminder letters. It could have provided Mrs X with prior knowledge of the Council’s recovery action where debts had been accrued.

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Agreed action

46. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise again in writing to Mrs X and pay her £150 to acknowledge the uncertainty, confusion and the time and trouble caused by the Council’s delays and its failure to explain Mr Y’s undercharged care fees in a timely manner.

47. Within six months of the final decision:

• provide the Ombudsman with evidence of the Council’s implementation of its new online financial assessments after its introduction in April 2023 (next financial year)
• provide the Ombudsman with an explanation and evidence of how the Council will monitor the performance of its new online financial assessment process to ensure service users are notified of any changes in their care fees contributions in a timely manner.

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Final decision

48. I find evidence of fault by the Council leading to injustice. The Council has agreed to take action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman