Summary: Mr X complained the Council has incorrectly charged his father, Mr Y, for the care he received. The Council is at fault as it has issued invoices which do not reflect the cost of the care it arranged. The Council has agreed to apologise, payment remedies, a review of the Council’s policies and systems and a review of similar cases.

The complaint

1. Mr X complained the Council has incorrectly charged his father, Mr Y, for the care he has received.
2. He says Mr Y has paid more money than required and he has had the frustration of having to pursue the return of the money.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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 have considered:
• The information provided by Mr X and discussed the complaint with him;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
8. Mr X and the organisation 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

Law and guidance

9. 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 places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the 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)
10. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. Councils have no power to assess couples according to their joint financial resources. A council must treat each person individually. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.

The Council’s charging policy

11. The Council’s charging policy distinguishes between those people who do not have to pay, those making a contribution and those people paying for their care in full which has been arranged by the Council. It says a set weekly fee will be payable following the assessment.
12. In relation to the fee payable paragraph 7.11 states that once a person’s contribution has been established, they will be required to pay the set amount unless they are absent from the home for two continuous weeks or the person dies.

What happened

13. In 2021 Mr Y was admitted to hospital. He was discharged to respite care for around two months. In November 2021 the Council arranged for carers to attend Mr Y’s home to meet his care needs and Mr Y returned home.
14. The Council carried out a financial assessment for Mr Y’s care. It determined his capital was in excess of £23,250 and that he would need to pay the full cost of the care he received. It stated this would be £222.60 per week and a £65 annual admin fee.
15. Mr Y paid the yearly admin charge in full in late November 2021.
16. Mr Y cancelled care visits on seven occasions in January, February and April due to family visits. Mr X says the family notified the care provider in advance and within sufficient time for the care provider not to charge.
17. The Council issued invoices every four weeks with a weekly breakdown of care fees payable by Mr Y. In December it charged £111.30 a week, between January and mid-April it charged £333.90 a week, and from mid-April onwards it charged £364.36 a week.
18. The invoices from the care provider are for different amounts each week in January, February, April, June and July. Its invoices for May, August and September are the same for each week.
19. Mr X says he has paid the care bill, but he has not paid for the visits that did not go ahead. He says he has withheld £73.73 from the Council.
20. Mr X raised a complaint on behalf of Mr Y in late April 2022. The Council responded accepting the care provider may not have charged for cancelled visits but explaining that its policy requires people to pay for their care and support needs each week regardless of any short interruptions of delivery of less than two weeks. It said this was to reflect the fact that a person is not paying towards individual services but is contributing to the overall cost of their personal budget annually.
21. Mr X escalated his complaint in June 2022 as he didn’t feel the response explained why Mr Y should pay for services he had not received. The Council maintained it had acted in line with its policy.

Findings for Mr X

22. The care provider’s invoices have not remained the same each week but the Council has requested the same weekly amount. As Mr Y pays the full cost of his care the Council’s invoices should reflect the amounts charged by the care provider. On 13 occasions the Council has charged a different figure to those received from the care provider. Each time Mr Y has been charged a higher amount than the invoice issued by the care provider. The charges issued by the Council should not be more than the cost of the care and this is fault.
23. This amounts to an over charge of £185.47. In mid-January the Council credited Mr Y’s account £111.30 as a care adjustment. This means Mr Y has paid £73.73 more than the care he received.
24. Mr X has been frustrated by this experience. He has had to work out the overcharge himself and raise the issue with the Council. Had the Council correctly calculated Mr Y’s charges Mr X would not have had to go to the time and trouble of sorting this out. Further he would not have had to wait several months for the reassurance that these fees would not have been charged.

Findings for other members of the public

25. It has come to our attention that others may have been potentially affected by the same fault. During the Ombudsman’s investigation the Council has identified that 1014 people pay a contribution to care in the home and 974 people pay for the full cost of care in the home. These people could have been affected by the Council’s policy.
26. When the Council responded to Mr X’s complaint it relied on paragraph 7.11 as the reason why it did not alter its charges. This paragraph specifically refers to when a person’s contribution has been established. Mr Y was paying for the full cost of his care and not a contribution. The policy makes no reference as to how it will address cancelled care for those who are not contributing but paying the full care costs. The Council should be clear on how it will deal with cancellations for people paying for the full cost of their care. This is fault.
27. Further, a policy of not reviewing the costs paid with the costs due for those who contribute could result in people paying for more than their care costs annually. Either because they have a significant amount of cancelled care provision of less than two weeks or where their assessed contribution is close to the amount charged for the care. The Council should have a policy in place to make sure that it is not charging people for more than the level of care they have received.

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Agreed action

28. The Council, within one month of the final decision, will:
• Confirm it will not be requiring Mr Y to pay the £73.73 he has withheld.
• Pay Mr X £200 for the time and trouble he has spent complaining about this matter.
29. The Council, within three months of the final decision, will:
• Review and amend its policy to ensure it has a system in place which correctly invoices those paying the full costs of their care on its four-weekly basis.
• Review and amend its policy to ensure it includes details of how it will ensure the charges issued do not amount to more than the amount charged for the care received for people paying a contribution.
• Write to all people potential affected by its previous policy in the last financial year. It should inform them of the decision the Ombudsman has made about its policy and ask those who believe they may have been similarly affected to contact the Council.
30. The Council, within six months of the final decision, will:
• Review the invoices for the last financial year for all people who contact it with concerns to determine if a refund is due.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I have completed my investigation. I have found fault leading to injustice. I have recommended action to remedy the injustice and prevent recurrence of the fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman