Summary: We found fault with the Council in the way the Council communicated with the complainant (Mr X) about the charges for his care services. We also found fault with the Council for its failure to take account of its duties under the Equality Act 2010. The Council’s fault caused distress to Mr X, which lasted for many months. The Council has agreed to apologise, review adjustments needed by Mr X in his communication with the Council and make a symbolic payment to recognise Mr X’s distress. The Council has also agreed some service improvements.

The complaint

1. Mr X says the Council charged him for the care he had not received. Mr X complains also about the lack of communication and support from the Council for many months when he was trying to resolve the incorrect invoicing issues.
2. Mr X says the Council’s failings meant he got into debt. His distress was increased by the bereavement he was going through. The Council’s failings to respond meant he was left scared, worried, frustrated and angry.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
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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What I have and have not investigated

7. I have decided to look at what happened from March 2022, although normally we would look at the events which happened within 12 months from when the complainant came to us. This is because there is evidence Mr X needs support when engaging in formal procedures and his difficulties justify extending our timescales. Besides the Council failed to respond to Mr X’s complaint expressed during his telephone call in September 2022 and only considered the complaint brought on his behalf by the Citizens Advice Bureau (CAB) over seven months later. It would not be fair for Mr X to bear negative consequences of the Council’s failings.

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How I considered this complaint

8. I spoke with Mr X and considered the information he provided.
9. I made enquiries with the Council and considered the information it provided.
10. I reviewed “The council’s equality and inclusion commitment to you” and our Focus Report “Equal Access: Getting it right for people with disabilities” published in May 2022.
11. 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

Legislative and administrative framework

Councils’ statutory duties

12. The Care Act 2014 and the Care and Support (Charging and Assessment of Resources) Regulations 2014 (Regulations) provide details of councils’ duties towards their residents with eligible social care needs and rules for charging for the services provided.
13. When exercising their social care functions councils must follow the Care and Support Statutory guidance (Statutory Guidance) issued by the Department of Health and Social Care, which is based on the Care Act 2014, unless they have very good reasons not to. They should also follow the Regulations.

Financial assessments

14. Where a local authority has decided to charge, it must carry out a financial assessment of what the person can afford to pay and, once complete, it must give a written record of that assessment to the person. This could be provided alongside a person’s care and support plan or separately, including via online means. (Care and Support statutory guidance paragraph 8.16)
15. Financial information and advice is fundamental to enabling people to make well-informed choices about how they pay for their care. The local authority service should include the following aspects of financial information and advice:
• understanding care charges
• ways to pay
• money management
• making informed financial decisions
• facilitating access to independent financial information and advice
• the cap on care costs, when preparing for its introduction in 2020 (Care and Support statutory guidance paragraphs 3.36 and 3.41)
16. Councils should ensure that information supplied is clear. Information and advice should only be judged as clear if it is understood and able to be acted upon by the individual receiving it. Information and advice provided within the service should be accurate, up-to-date and consistent with other sources of information and advice. (Care and Support statutory guidance paragraphs 3.19 and 3.20)

Charging

17. When making decisions on charging local authorities should be clear and transparent so people know what they will be charged. Where a local authority has decided to charge it should explain in the financial assessment how the assessment has been carried out, what the charge will be and how often it will be made. The local authority should ensure this is provided in a manner that the person can easily understand, in line with its duties on providing information and advice. (Care and Support statutory guidance paragraph 8.2 & 8.16)
18. Information and advice should only be judged as clear if it is understood and able to be acted upon by the individual receiving it. (Care and Support statutory guidance paragraph 3.19)

Communication

19. Our “Principles of Good Administrative Practice” guidance published in December 2018 sets up the standards we expect from the councils when investigating their actions. Councils should be service user focused by:
• Ensuring people can access services easily, including those needing reasonable adjustments;
• Informing service users what they can expect and what the organisation expects of them;
• Keeping to commitments, including any published service standards;
• Dealing with people helpfully, promptly and sensitively, taking account of their individual circumstances;
• Responding to service users’ needs flexibly and, where appropriate, coordinating a response with other service providers.

Equality Act 2010

20. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
21. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.

What happened

Background

22. In Mr X’s care and support plans it is recorded that he struggles to read and understand correspondence and needs support with this and any actions required. He also needs support and reassurance when speaking to people in formal situations.
23. Mr X’s social care file says he needs written communication. Mr X is able to answer telephone calls but also prefers written information sent following any discussions. Mr X has a support worker who helps him to understand any letters. He needs support at reviews or meetings.
24. Mr X’s care and support plan from January 2020 specified five hours support a week needed to manage his medical needs but also support him with finances and administrative tasks. Mr X was supported by the charity helping people with learning disabilities (the Care Provider).
25. In the financial assessment carried out for Mr X in August 2020 the Council stated that Mr X was not required to pay any contributions towards his care costs.

Care charges

26. Following a financial assessment for Mr X in February 2021 the Council set a maximum weekly charge and specified the cost of Mr X’s support of five hours per week.
27. In mid-March 2022 Mr X contacted the Council about the invoices he received for his care from the second week of February 2021. He was very upset to receive a bill for nearly five thousand pounds.
28. The Care Provider told the Council it had been struggling to support Mr X with his finances as Mr X was reluctant to share his private information with them.
29. The Council checked Mr X’s Personal Independence Payment with the Department for Work and Pensions and confirmed Mr X was receiving a lower rate of this benefit than applied in his financial assessment in February 2021. The Council apologised and told Mr X it would correct the charges from February 2021. The difference on the bill amounted to £615.
30. At the beginning of April Mr X told the Council he was concerned that he could not afford his care charges. He stated at the last review the Council said he would not have to pay anything. In view of the charges due from him, Mr X said he could only afford one and a half hours of care per week.
31. At the same time the Citizen Advice Bureau (CAB) contacted the Council on Mr X’s behalf about its incorrect invoicing.
32. During a telephone conversation with the Council at the end of April Mr X stated he was considering cancelling his care services as he was unhappy about paying for them. He could not afford them, he said, even after reducing the hours. The Council asked Mr X to provide his bank statements, which Mr X sent at the end of May 2022.
33. At the beginning of May 2022 Mr X called the Council informing of some errors in the billing. He pointed out that he was charged for the time when he had COVID and did not receive any support. He asked for further reduction of his care support and for a payment plan for the overdue charges.
34. At the end of June 2022 the Council sent Mr X some further corrections to his care charges from mid-March 2022.
35. A few days later the Care Provider told the Council that Mr X had stopped engaging with them and he did not want their support to continue. At the meeting with the Council in August 2022 Mr X clarified he did not receive any services since the beginning of June 2022.
36. Mr X called the Council at the end of September and complained. Mr X explained he was very upset when he suddenly got 15 invoices for the care he received. He asked for the Council’s suggestions of the care agencies he could approach for one and a half hour of help every two weeks. A member of the Council’s staff told him they would ring him back within two weeks.
37. The next day the Council told Mr X the Care Provider would be happy to continue its services for him. Mr X did not wish to continue with the Care Provider.
38. CAB contacted the Council again at the beginning of November 2022, listing the dates when Mr X did not receive any care or support, but was still charged for.
39. The Council called Mr X to explain that its finance team got a breakdown of when Mr X received care support from the Care Provider and was working out the outstanding charges. Mr X said he wanted to receive this information at the meeting and the Council agreed to that. Mr X remained upset throughout the conversation.
40. In mid-December 2022 Mr X told the Council he was struggling without any support. The Council suggested contacting the Care Provider but Mr X did not want to engage with them. He said he was very upset about his debt. The Council’s officer said somebody from the finance team would contact him to discuss a repayment plan.
41. Mr X contacted the Council in the second week of February 2023, complaining about the lack of updates. He asked for a social worker to be allocated to him due to his learning disabilities and the deterioration of his mental health.
42. In the third week of February 2023 CAB called the Council seeking response to its earlier communications. The Council’s officer could not find CAB’s letters so asked CAB to re-send them to a specific email address, which was done.
43. After another visit from Mr X, CAB called the Council in mid-March 2023. The Council agreed to suspend invoices and start its investigation. The officer said the Care Provider had still been charging for care for Mr X despite the fact, he had received any care from the beginning of June 2022.
44. Around the same time the Council gave Mr X some contact details of the private care agencies he asked for during a telephone conversation.
45. At the beginning of July the Council sent Mr X the outstanding care charges reminder. It confirmed a meeting with Mr X would be held at the end of August 2023.
46. In mid-September the Council confirmed the receipt of the outstanding care charges from Mr X.

Complaint

47. In the second week of April 2023 CAB, acting on behalf of Mr X, formally complained to the Council. CAB said Mr X had not received any care since the beginning of June 2022. The Council failed to support him and to respond to his complaint made during his telephone call at the end of September 2022.
48. The Council responded six weeks later apologising for some failings in responding to Mr X’s communications. It confirmed that:
• After obtaining the Care Provider’s clarifications on the amount of care provided to Mr X at the times he queried, the charges were corrected;
• Following Mr X’s financial assessment at the end of June 2022 and considering the lower rate of Personal Independence Payment he had been receiving, his assessed charges decreased. The Council issued amended invoices.
• No charges were raised after the beginning of June 2022.

The Council offered to arrange a payment plan.

49. In mid-October 2023 Mr X’s support worker told the Council Mr X remained dissatisfied as he was not compensated for the way the Council had treated him. He also wished to have an opportunity to meet with the member of the Council’s staff to express his feelings and thoughts.
50. The Council explained it had responded to Mr X’s complaint in May 2023 and had completed consideration of Mr X’s complaint.
51. A month later Mr X brought his complaint to us. During the telephone conversation Mr X told me his complaint was about the way the Council treated him throughout the process.

Analysis

52. Mr X’s file includes the information he has difficulties in dealing with his finances. Until March 2022 the Council seemed to have relied on the Care Provider to support Mr X with his finances. It is not clear, however, why for twelve months from March 2021 until February 2022 the Council did not ask for reasons why Mr X had not paid the invoices for his care charges.
53. From March 2022 Mr X regularly contacted the Council about three issues:
• He was charged incorrect sums for the care services delivered to him;
• He could not afford care services and could not pay the overdue charges;
• He needed support but did not want to use the Care Provider’s services anymore.
54. I find the Council failed to adequately communicate with Mr X and his representatives from CAB. In particular it failed to:
• Respond to the correspondence from CAB acting on behalf of Mr X;
• Follow up on its commitments communicated to Mr X during telephone calls, such as arranging meetings or providing updates;
• Arrange a payment plan despite multiple requests from Mr X and the Council mentioning this a few times.
55. Besides the Council took too long to resolve incorrect charging for Mr X’s care services. The Council learnt of the issue in March 2022. By the end of May 2022 the Council had Mr X’s bank statements for the last twelve months. It took the Council further six months to work out the corrections needed to the care charges due from Mr X and further six months to explain the details to Mr X. This is an excessive amount of time especially when aware of Mr X’s circumstances.
56. In November 2022 Mr X told the Council he wanted to get an explanation for the overdue care charges at a meeting rather than in a letter or during a telephone call. This meeting finally took place at the end of August 2023. The Council knew about Mr X’s upset and continuing struggles with mental health, especially as, at the time, he was not receiving any care services. Therefore delaying the meeting to resolve the issue of the overdue charges by nine months cannot be justified.
57. The Council delayed telling Mr X about the alternative care providers although Mr X spoke about his difficulties to manage without support.
58. The Council’s failings described in the paragraphs above are fault. They caused injustice to Mr X. For many months he was anxious about his financial situation. He was uncertain about the outcome of the Council’s review of his concerns about incorrect charging. Mr X sought help from CAB and was frustrated the Council failed to respond to their correspondence. Mr X spent much time contacting the Council and trying to get a resolution.

Equality Act 2010

59. The Council’s records for Mr X state he needs written communication following any telephone discussions and support during reviews and meetings. This is an adjustment which the Council has agreed, recognising Mr X’s needs stemming from his disability.
60. There is no evidence the Council applied this adjustment when dealing with Mr X. In its response to my enquiries the Council said the only letters sent to Mr X related to the outcomes of his financial assessments, invoices, automated reminders of unpaid invoices and complaint response. Mr X had many telephone conversations with the Council’s staff but they were not followed up with the written correspondence.
61. Until the end of May 2022 Mr X was supported by the Care Provider, whose role was to help him with the finances and administrative tasks. From June 2022 this support stopped. At this time the Council should have checked what adjustments Mr X needed to have equal access to the Council’s services. There is no evidence the Council completed this review.
62. The Council failed to have regard to its duties under the Equality Act 2010 by its failure to:
• Apply reasonable adjustments in its communication with Mr X;
• Review adjustments agreed for Mr X to check whether they needed adjusting after the change in his circumstances.
63. The Council’s fault to have regard to its duties under the Equality Act 2010 caused injustice to Mr X. For a long time he remained confused about the overdue charges, which caused him anxiety and affected his mental health.

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Agreed action

64. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise in writing to Mr X for the injustice caused to him by the faults identified. The Council should consider our guidance on remedies which sets out our expectations for how organisations should apologise effectively;
• carry out a review of the adjustments Mr X needs when communicating with the Council;
• pay Mr X £350 to recognise the distress caused to him by the Council’s failing to communicate with him effectively and have due regard to its Equality Act duties.

The Council will provide the evidence that this has happened.

65. We also recommend the Council within three months of the final decision:
• Remind the Adult Social Care staff of its duty to follow the adjustments agreed for the service users. The staff will review our documents: “Principles of Good Administrative Practice” and “Equal Access: Getting it right for people with disabilities”.

The Council will provide the evidence that this has happened.

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Final decision

66. I uphold this complaint. I found fault in the way the Council communicated with Mr X about his care charges and in the Council’s failure to have regard to its duties under the Equality Act 2010. The Council’s fault caused injustice to Mr X. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman