Summary: Mr D complained on behalf of his mother that the Council had overcharged for her care and support and failed to issue invoices. He also complains about delay responding to his complaint. We found fault causing an overcharge, distress and time and trouble. The Council has agreed to take the actions set out at the end of this statement to remedy the injustice caused.

The complaint

1. Mr D complained on behalf of his mother, Mrs F, that the Council had overcharged for her care and support and failed to issue invoices, leading to an overcharge of £13,000. He also complained about delay responding to his complaint. This has caused anxiety, distress and time and trouble.

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The Ombudsman’s role and powers

2. 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)
3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, sections 24A(1)(A) and 25(7), as amended).
4. We normally name care homes and other care providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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)
7. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

8. I spoke to Mr D about the complaint and considered the information he sent, the Council’s response to my enquiries and:
• The Care Act 2014 (“the Act”)
• The Care and Support Statutory Guidance 2014 (“the Guidance”)
• The Care and Support (Charging and Assessment of Resources) Regulations 2014 (“the Regulations”)
9. Mr D 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

Relevant law and guidance

Care and support

10. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council.
11. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan. Councils should keep care and support plans under review, at least every 12 months.

Charging for homecare

12. Where a council arranges care and support to meet a person’s needs, it may charge the adult for the cost of the care. The Act says councils must not charge more than the cost that it incurs in meeting the assessed needs of the person. (Care Act 2014, sections 14 & 17)
13. The Council says it pays care providers for all arranged and planned care unless it is informed that care was not provided.
14. The Guidance and Regulations state that people who have capital (e.g. savings) over the upper limit (£23,250) are expected to pay the full cost of their care. They are known as “self-funders”.
15. Councils must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of their care. In assessing what a person can afford to pay, a council must take into account their income, such as pensions or benefits. For homecare, the financial assessment must exclude the value of the property which they occupy as their main or only home.
16. A person with more in capital than the upper limit can ask their local authority to arrange their care and support for them. In such circumstances, the person remains responsible for paying for the cost of their care and support, but the council takes on the responsibility for meeting their needs. If the council arranges care, it is the council which contracts with the care provider.
17. Where a person has significant financial resources and does not wish to undergo a full financial assessment but wishes for the council to arrange their care and support, councils may carry out “light-touch” financial assessments.
18. If a council decides to carry out a light touch assessment, it should take steps to assure itself that the person has sufficient assets for the care provision to remain both affordable and sustainable. They must also make sure the person has access to sufficient information and financial advice to ensure that they or their representative are able to understand any contributions they are asked to make.
19. Councils must regularly reassess a person's ability to meet the cost of their care, considering any changes in their circumstances. The Council’s social care charging policy says people may request a full financial assessment when their capital is £30,000 or less.
20. The local authority should also take steps to avoid disputes and additional liabilities by securing a person’s agreement in writing to pay the costs that they are responsible for in meeting their needs, including any payments to providers.
21. In relation to the recovery of debts, the Guidance (Annex D) says councils should explain there will be invoices. The Council’s policy says invoices will be sent every four weeks. Councils are bound by the public law principle of acting reasonably at all times and must act in accordance with human rights legislation, as well as the wellbeing principle set out in the Care Act. Given this, councils will wish to consider all other reasonable avenues before utilising the debt recovery powers provided under the Act.

Fundamental Standards of Care – maintaining records

22. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall. The standards include “Good Governance” (Regulation 17).
23. Regulation 17(2)c says providers must maintain securely an accurate, complete and contemporaneous record in respect of each service user. These records should be stored and destroyed in line with current legislation and nationally recognised guidance. The Care Homes Regulations 2001 and the Guidance About Compliance: Essential Standards of Quality and Safety set a minimum period of three years, to comply with data protection requirements.

Complaint procedures

24. Councils should have clear procedures for dealing with social care complaints. Regulations and guidance say they should investigate a complaint in a way which will resolve it speedily and efficiently. A single stage procedure should be enough. (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)
25. Regulations do not say how long a complaint investigation should take but expect this to be determined at the start of the procedure, usually in discussion with the complainant. During the investigation, the council must keep the complainant informed of progress ‘as far as reasonably practicable’. If the responsible body has not provided a response after six months (or, after any previously agreed longer period), it must write to the complainant to explain why.
26. The Council’s adult social care complaint policy says the first step is local resolution and it aims to respond within 20 working days. If a complainant remains dissatisfied, an in-depth investigation should take a maximum of 65 working days.

What happened

27. Mrs F is in her 90s; she was admitted to hospital in 2021 following a fall. When she left hospital, the Council assessed her care and support needs. It found that, due to her reduced mobility, Mrs F required four homecare visits a day to help her with personal care and meals.
28. The Council spoke to Mrs F’s son, Mr D, on 6 August 2021. He said that Mrs F had savings above the upper capital limit but asked the Council to arrange the care. The short-term care assessment says that Mr D “did not know if Mrs F has received the financial letter from the ward. Has not been informed about the finances, only that care would last up to four weeks.” Mr D declined a full financial assessment.
29. The Council arranged for Rula Homecare (“the care provider”) to provide the care of four 30-minute calls a day (14 hours a week) from 5 August 2021.
30. The Council reviewed Mrs F’s care and support on 2 September 2021. The new long-term care plan was for three 30-minute visits and one 90-minute visit per day (21 hours per week). This was put in place from 8 September 2021.
31. The care plan says this would be until 19 September and would be reviewed in four weeks, but there was no further review. The Council did not issue any invoices to Mrs F.
32. Mrs F says that on 6 June 2022 she asked the care provider to reduce its provision to one hour per day in the mornings (7 hours per week). This was because she had arranged care with an alternative private carer (Mrs K).
33. The care provider says it spoke to Mrs F about cancelling their calls but she wanted to keep their carers on “standby” in case Mrs K was unavailable. I have seen no evidence that the care provider advised the Council about the changes. Nor have I seen any evidence that the care provider advised Mrs F that she may still be charged if the carer was on “standby”.
34. I have seen no evidence that 21 hours of care was provided after June 2022, nor any evidence that the care provider sent the Council any evidence that it had provided this care to Mrs F.
35. In February 2023, the Council discovered that no financial assessment had been completed. A financial assessment was completed and found that Mrs F was a “full-cost payer” (that is that her capital was below the upper limit but her assessed contribution was more than the cost of the care needed to meet her eligible needs) and would be charged £262.78 for 14 hours of care per week from 3 September 2021.
36. Mrs F ended the care from the care provider on 25 April 2023 as Mrs K became available in the mornings. This was noted in the Council’s care and support review in May 2023.
37. The Council issued an invoice to Mrs F on 29 June 2023 for £38,188.28. The invoice charged Mrs F for 21 hours of care per week since 13 September 2021. Some hours were later credited to Mrs F as she had been in hospital, so the total amount owed was £37,862.63. A payment plan of £750 per month was set up.

Mr D’s complaint

38. Mr D complained to the Council on 28 September 2023 that they had received no invoices and that the invoice was wrong. He said Mrs F had received only seven hours of care per week from the care provider since 6 June 2022.
39. The Council’s stage one (local resolution) response was sent on 23 October. It said a financial assessment had not been completed in 2021 and that the care provider had confirmed that 21 hours of care had been commissioned.
40. Mr D replied to the Council on 27 October as he remained dissatisfied. I have seen no evidence this was sent to the complaints team for an in-depth investigation.
41. Mr D came to the Ombudsman in February 2024 as he had received no response from the Council. We contacted the Council which said a complaint response was overdue.
42. The Council sent a stage two response to Mr D on 10 May 2024. It said the care provider had advised that Mrs F always received the morning call unless she was in hospital. The care provider no longer held Mrs F’s records as it had a new care system and could not afford to maintain two systems. The Council said that as the care provider charged the Council for care it provided to Mrs F, it had invoiced her accordingly and the invoice was correct.

My findings

43. There was fault by the Council in issuing an invoice late. It had arranged care for Mrs F in August 2021. Although Mrs F was a self-funder, the Council had commissioned the care. It therefore should have issued invoices every four weeks. It did not, which is fault. It failed to issue an invoice until June 2023 by which time Mrs F owed a considerable amount. Whilst Mrs F knew she would be charged for her care, receiving an invoice two years late for almost £40,000 causes her significant distress.
44. The Council says the invoice was not issued because there had been no financial assessment. The Council should have a system in place to issue invoices to self-funders who have not had a full financial assessment and to seek evidence from care providers it has commissioned that care is being delivered.
45. Whilst it was not fault for Mrs F to have a light-touch financial assessment in August 2021, the Council should have put steps in place to ensure Mrs F’s resources were monitored to ensure she could continue to pay for her care. I have seen no evidence it did this, which is fault.
46. When Mrs F told the care provider that she would be mostly using Mrs K as a carer, it should have informed the Council. I have seen no evidence that it did, which is fault. When a council commissions another organisation to provide services, we treat actions taken by that organisation as actions taken on behalf of the Council and in the exercise of the Council’s functions. This means we hold the Council responsible for fault by the care provider.
47. The Council failed to review Mrs F’s care and support in September 2022. This is fault. If it had done so, it would have realised there had been a change in the carers.
48. I have seen no evidence that Rula Homecare provided 21 hours of care per week to Mrs F after June 2022. My view, on balance, is that it is likely that seven hours of care per week (not 21 hours) was provided to Mrs F after the week beginning 6 June 2022.
49. The care provider says they are charging for 21 hours per week because their carer was “on standby” but there is no evidence that it was explained to Mrs F that she would still be charged for this. Nor is there evidence that being charged for standby care is part of the care provider and Council’s framework agreement.
50. The Council says the care provider could not have advised Mrs F as it would not have known whether or not Mrs F would be charged. I disagree. The care provider was fully aware that it would be charging the Council for Mrs F’s care, and that councils do not pay for care that is not delivered (such as when Mrs F was in hospital). Its response to the Council following Mr D’s complaint says “as Mrs F was paying for her care herself”, so it was aware that she was a self-funder.
51. I therefore find it was fault for the care provider not to advise Mrs F that it would continue to charge her for hours of care it was not delivering. This has caused Mrs F to be wrongly charged as the law says councils may only charge for care that is provided. Any dispute between the Council and care provider is for the organisations to resolve.
52. I consider it appropriate to allow the care provider a week’s notice period. I therefore find that Mrs F received the following care from the care provider [excluding periods in hospital]:
• 5 August to 7 September 2021 (5 weeks): 14 hours per week
• 8 September 2021 to 12 June 2022 (40 weeks): 21 hours per week
• 13 June 2022 to 23 April 2023 (45 weeks): 7 hours per week.
53. The hourly rate and hours in the Council’s invoice of 29 June 2023 are different to the hourly rate and hours in the April 2023 financial assessment. The outcome of the financial assessment says Mrs F will be charged £262.78 for 14 hours per week (a rate of £18.77 per hour). The invoice charges her for 21 hours per week at hourly rates from £20.57 to £24.24. It is unclear why there is this discrepancy, so I find there is either fault in the invoice or financial assessment.
54. There was delay in complaint handling. Mr D replied to the Council’s first response on 27 October 2023. The Council should have completed its in-depth investigation by 31 January 2024 at the latest, but did not reply until 10 May 2024, which is fault. In addition, my view is that the complaint investigation was insufficient as the Council failed to establish whether the care had been provided or whether Mrs F was being properly charged. This fault in complaint handling has caused Mrs F and Mr D distress and time and trouble.
55. The care provider says it has not kept Mrs F’s records. This is a possible breach of the fundamental standards (Regulation 17(2)c). I will therefore send the CQC a copy of my final decision statement.
56. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Our guidance says that a moderate, symbolic payment up to £500 may be appropriate to remedy distress caused by fault.

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Agreed action

57. When a council commissions or arranges for another organisation to provide services we treat actions taken by or on behalf of that organisation as actions taken on behalf of the council and in the exercise of the council’s functions. Where we find fault with the actions of the service provider, we can make recommendations to the Council alone. I have found fault with the actions of the care provider and make the following recommendations to the Council.
58. Within a month of my final decision, the Council has agreed to:
• Apologise to Mrs F.
• Pay Mrs F £500 to remedy the injustice caused by fault.
• Re-assess Mrs F’s finances to clarify whether she is a self-funder or full-cost payer and what her contribution is.
• Issue a revised invoice based on the hours set out in paragraph 52 of this statement.
59. Within three months, the Council has agreed to:
• Review its systems to ensure invoices can be issued to self-funders who have not had a full financial assessment and that there are regular checks that commissioned care is being evidenced and invoiced.
• Check that it is monitoring whether regular care and support reviews are being carried out of self-funders.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman