Summary: There was fault by the Council in its handling of the charges for Mr C’s non-residential care. This resulted in the issuing of an unexpected and incorrect invoice for more than £4,000. The Ombudsman considers that the Council is entitled to recover the corrected debt, but it should make a symbolic payment of £200 to Mr C for the distress caused to him, and payments of £200 and £100 to his daughter Miss B for her distress and time and trouble.

The complaint

1. Miss B complains that the Council failed to provide appropriate information to her and her father, Mr C, about the charges he would have to pay for his care when he moved into his current sheltered accommodation. It then sent her father a backdated invoice for extortionate charges without prior notice or discussion.
2. Miss B questions the level of charges which the Council says are outstanding and the claimed hours provided. She considers that the Council should write off the balance of charges, as these accrued due to an error by the Council and her father cannot afford to repay the debt.

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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. 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

5. I have considered Miss B’s written complaint and supporting papers. I have had regard to the relevant law and guidance. I have also made enquiries of the Council. A copy of my draft decision has been shared with Miss B and the Council and they were invited to comment. I have considered comments received before reaching a final decision.

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What I found

Legal and administrative background

Charging for social care services

6. 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)
7. 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. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.

Minimum Income Guarantee

8. People receiving care and support other than in a care home need to keep a certain level of income to cover their living costs. Councils’ financial assessments can take a person’s income and capital into consideration, but not the value of their home. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by national government and reviewed each year. A council can allow people to keep more than the MIG. (Care Act 2014)

What happened

9. As a result of a serious medical condition, Mr C had been living in a residential care home for around 10 years. This was a 24-hour Funded Nursing Care (FNC) placement. The NHS Clinical Commissioning Group (CCG) paid for the FNC element whilst the Council paid for the residential social care provision, together with a personal financial contribution from Mr C.
10. In February 2021, Miss B contacted the Council to discuss whether it could look into more independent housing for her father. A social worker spoke with her about a possible move to a flat in Extra Care housing in a complex (the home) run by a housing association, with on-site 24-hour care and support. The social worker explained that Mr C would have a tenancy agreement and pay rent and a fee to the housing association.
11. The Council undertook a care needs assessment and agreed to apply to the multidisciplinary team of professionals (the panel) who would consider whether Mr C would continue to be eligible for NHS funding of his care.
12. Miss B viewed the flat and spoke again with the social worker in March. She said she had already given Mr C’s former home 4 weeks’ notice, and he would be moving to the new home in mid-April. The social worker said he would request a financial assessment once Miss B knew her father’s benefit entitlement.
13. Miss B signed the tenancy agreement with the home. This set out Mr C’s rent and service charges of £200.69 per week of which £129.58 would be eligible for Housing Benefit. This would leave £71.11 of ineligible housing-related charges which Mr C would have to pay the home.
14. Before Mr C moved in, the home manager suggested, and Miss B agreed a care package comprising:
• a 30-minute morning call - check wearing pendant, personal care, help dressing, make bed, empty urinal, medication and breakfast.
• a 10-minute lunch call - medication
• a 10-minute tea call - medication
• a 10-minute evening call - supper, assist into nightwear.
• a 20-minute night call - medication and assist into bed.
• the possible addition of two showers per week with staff discreetly observing.
15. Mr C moved into the home in mid-April and the following week the social worker requested a financial assessment.
16. Mr C’s move also triggered a reassessment of his CHC funding. In May, a nurse assessor and the social worker undertook an assessment using the NHS decision support tool, with Mr C and Miss B present. It was determined that Mr C was not eligible for CHC funding so joint funding would stop with effect from the day he left his previous home. Mr C was notified by letter of the decision and of his appeal rights the following month.
17. In late July, the Council wrote to Miss B to arrange a financial assessment to assess his contribution to his social care costs. This was carried out in early August by telephone. Mr C’s weekly income was £350.75. The Council disregarded £217.61 of expenditure, comprising £151.45 Basic Living Allowance (Minimum Income Guarantee), £62.55 Mobility Allowance, and a £3.61 allowance for the cost of a turning bed. This left Mr C with a maximum weekly contribution towards his care package of £133.14.
18. The Council wrote to Miss B and advised that:
• Mr C’s rent would be covered by Housing Benefit.
• He would have to pay the home an ineligible rent contribution of £69.98 from his own income.
• Mr C’s maximum weekly contribution to the Council would be £133.14 per week – this would include an hourly charge of £15.50 per hour as directed by his Care Plan, and an overnight/emergency charge of £52.78 per week.
19. Miss B was concerned at the cost of her father’s care, given his increased independence and asked if anything could be done to reduce the cost.
20. The Council undertook a care plan review and agreed a reduction in Mr C’s care package to 40 minutes a day (four hours 40 minutes a week) comprising four 10-minute calls daily for morning, lunch and tea delivery and evening. The social worker informed the finance team of the change in the care package.
21. Miss B also contacted the Housing Options Team to explore whether her father might be able to move into an adapted property with her acting as carer. The Team advised her that this may not result in any significant financial savings and there would be the issue of how she could provide care as she was working. The Team advised that it would be closing Mr C’s case and there was no further follow up on this from Miss B.
22. In October 2021, the Finance Team updated Mr C’s care charges. In error, it removed the hourly care charges. As a result, Mr C was only invoiced for the £52.78 overnight charge.
23. This remained the case until September 2022, when Miss B contacted the Council to query an invoice. The Council identified this as an error and recredited the account. It then issued an invoice in October 2022 for £4,363.88.
24. Miss B queried the charges and requested a breakdown. The Council reviewed the charges and determined that the invoiced amount was incorrect because it was based on the commissioned care rather than the actual care hours provided. It reviewed the charges, based on the actual service and issued a new invoice for £2,765.51. Miss B then complained to the Council about the charges.
25. The Council accepted that there had been errors in the charging but said it had correctly notified Mr C of his personal contribution when it carried out the assessment. It said the charges were due and would have been billed were it not for the error. The Council offered to accept payments in instalments.
26. Miss B complained to the Ombudsman. She considered that the Council should not recover the debt because this was a result of a Council error.
27. The Council explained that the regular four-weekly invoices for Mr C’s care were being paid in full. This meant there were only two outstanding invoices:
• an invoice for £416.95 (issued 20 February 2023, covering 9 January 2023 to 5 February 2023) and
• an invoice for £2,765.51 (issued 30 November 2022, covering charges from 20 September 2021 to 18 September 2022)
28. The Council has since explained that it had incorrectly backdated charges four weeks (as per its charging policy) from the date of the invitation letter of 26 July 2021 to 28 June 2021. However, as the financial assessment was actually undertaken on 4 August 2021, it should only have backdated charges to 7 July 2021. It has therefore refunded £143.41.
29. The Council has also explained that it has reviewed its processes in relation to the issue of high value adult social care invoices and implemented additional steps to minimise the anxiety and distress caused. Where a large invoice is due to be issued as a result of backdated charges, its Billing Team will write to the service user (or their representative) in advance of sending the invoice. The letter will apologise for the delay, confirm the backdated charge and how this figure has been calculated. It will also advise that if they are unable to pay the invoice in full, to contact the team to agree suitable repayment arrangements.
30. In respect of recovery of the debt, the Council says it would follow its normal debt recovery processes. This would initially involve agreeing a suitable payment arrangement covering both the ongoing services provided and an appropriate regular payment towards the arrears/backdated care fees based on the service user’s income and circumstances.

My assessment

Inadequate information provided when moving into the home

31. Miss B complains that she did not receive sufficient information about charges before her father moved into the home.
32. The Council’s usual process is to carry out a financial assessment prior to a move into an Extra Care scheme, in order to fully inform clients of the costs before they decide to move. However, in this case Miss B had progressed the move directly with the home and informed the social worker once the flat had already been agreed and notice given to the previous care home.
33. I find no fault here by the Council. I consider that it was Miss B’s choice to go ahead with the tenancy on the basis of what she had been told by the home about the charges and the package agreed with the home.

Delay in assessing contributions

34. Miss B complains of the delay in carrying out the financial assessment.
35. The Council accepts there was substantial delay due to unprecedented pressures upon the Financial Assessment Team.
36. It is unfortunate that there was a three-month delay in carrying out the assessment, though I am mindful that this should be considered in the context of the significant pressures placed on services during the COVID-19 pandemic. However, it is clear that Mr C wanted to move into more independent housing. So I see no reason to suggest that that decision would have been different had the financial assessment been conducted earlier.
37. I have also considered how the delay in carrying out the assessment affected Mr C’s financial contributions. I note that Mr C was charged the maximum assessed contribution from 6 July 2021 until Miss B became aware of the assessed charges and Mr C’s care package was reduced. However, the delay in carrying out the assessment also meant that Mr C did not have to pay any contribution towards his care from 16 April to 6 July, so he has not suffered financial loss as a result.

Incorrect charging

38. Miss B complains that the Council sent incorrect invoices, including a very large incorrect invoice for over £4,000 which caused her and her father considerable distress. She questions some of the hours charged. She also considers that the Council should write off the balance of charges, as these accrued due to invoicing errors by the Council and because her father cannot afford to repay the debt.
39. There was fault by the Council in its handling of Mr C’s account. This resulted in Mr C accruing a large debt because he was not being correctly invoiced.
40. However, I consider that the Council is entitled to recover the debt from Mr C. I do not consider that there are grounds to ask the Council to write off the debt, when it is seeking to recover the charges, it had informed him of when carrying out the financial assessment. In recovering any debt, however, the Council should have regard to Annexe D of the Care and Support Statutory Guidance which sets out relevant factors to take into consideration.
41. Having reviewed the corrected invoices, I see no reason to question the amounts invoiced, as these correspond to the hours set out by the care home. I note that some of the earlier care records show daily totals of between 25- and 45-minutes care, rather than the individual minutes of care provided during the four daily visits. However, I do not see grounds to question this. The daily totals are not fixed at 40 minutes in every case, and so appear to reflect actual hours provided.
42. However, Miss B has been put to time and trouble to establish the correct care charges. These have only now been established following the complaint to the Ombudsman, with the charges being applied from 7 July 2021 rather than 28 June 2021. I think it would therefore be appropriate for the Council to pay Miss B £100 in recognition of her time and trouble pursuing her complaint.
43. As regards the issuing of a very large and incorrect invoice without warning, I note that the Council has now taken steps to improve its procedures in this regard. However, I consider this was a distressing experience for Miss B and Mr C and that this warrants a remedy for the distress caused. I consider that the Council should pay Miss B and Mr C £200 each in recognition of the distress caused by its error.

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Agreed action

44. Within one month of the decision date on this complaint, the Council will:
• Make a payment of £200 each to Miss B and Mr C in recognition of the distress caused by its mishandling of Mr C’s account and the sending of a large and incorrect invoice with prior warning.
• Make a payment of £100 to Miss B in recognition of her time and trouble pursuing her complaint.
45. These payments should be made directly to the complainants and not deducted from any debt to the Council. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I found the Council at fault which caused injustice to Mr C and Miss B. The Council has agreed to make a symbolic payment of £200 to Mr C for the distress caused to him, and payments of £200 and £100 to his daughter Miss B for her distress and time and trouble. This is an appropriate remedy.
47. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman