Summary: Mrs Z, on behalf of her father Mr X, complained the Council allowed a debt to accrue for adult social care services. The Council accepts fault in its failure to communicate with Mr X about the unpaid domiciliary care charges and allowing them to accrue to over £9,000. The Council has already taken action to provide a suitable remedy for this complaint.

The complaint

1. Mrs Z, on behalf of her father Mr X, complains the Council allowed a debt to accrue for adult social care services.
2. She says Mr X is now unable to pay this back as he is in residential care and his only available income is the personal expenses allowance.

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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. 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. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant’s representative;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant’s representative ;
• sent my draft decision to both the Council and the complainant’s representative and taken account of their comments in reaching my final decision.

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What I found

Charging for social care services: the power to charge

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)

Mental Capacity Act

7. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.

Mental capacity assessment

8. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

9. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.

Key facts

10. The Council began providing domiciliary care services for Mr X in August 2019. It met with Mr X and completed a care and support assessment. It says that at this meeting it completed a financial assessment with Mr X and discussed costs. The Council says it was satisfied that Mr X was able to understand and make decisions about the care and the costs.
11. The Council says that once the care services began it sent monthly invoices to Mr X as well as statements on a quarterly and annual basis. It says this would include information about how to make payments and contact information if Mr X wanted to discuss anything.
12. Mr X failed to make any payments for the care provided. The Council says that due to staffing capacity with the relevant team, it failed to identify that a debt was accruing on Mr X’s account and so no further action was taken. No debt management support was offered to Mr X and no financial review of his account has taken place since 2018.
13. In early 2023, Mr X was admitted to hospital and then moved to an assessment bed. Mrs Z went to her father’s home on 30 March 2023 to collect some personal items for him. During this visit she found an invoice for £350.56. Mrs Z had been unaware of these charges and so contacted the charging team who explained it was an invoice for Mr X’s care services. On looking at the system the Council explained her father had not paid any bill for over four years and that he owed over £9,000.
14. Mrs Z spoke with a manager and explained her father had dementia and the Council should have ensured someone was with him during his assessment in August 2029. Mrs Z also explained that her father was unable to read and so would not have understood the bills sent to him.
15. Mrs Z made a formal complaint to the Council on 3 April 2023. She queried how the Council had allowed this situation to continue for so many years. She asked why no debt management had taken place and how it had allowed such a large debt to accrue over such a long period. Mrs Z also raised the issue that in 2022 the Council put a new system in place and closed one account with a debt of £7,150 attached to it and then set up a new account and allowed a further debt of £1,798 to accrue.
16. Mrs Z said that since first assessed in 2019, her father’s package of care had changed three times due to his dementia getting worse. She queried the Council’s processes and procedures that allowed a vulnerable man to get into debt and questioned the consideration for her father’s wellbeing. Mr X had moved to assisted living accommodation in March 2022 and he had a social worker assisting him but no-one took action regarding the debt. Mrs Z asked how her father was expected to pay the amount owed.
17. In response to her complaint, the Council said that when it met with Mr X in August 2019 it had no information about a dementia diagnosis or that Mr X could not read. It explained its system does not raise alerts if invoices are not paid and it carried out no checks from 2019 to 2023. It said it had no policy or requirement to check accounts but accepted it would be good practice to do that. It acknowledged it missed the opportunity to implement timely actions regarding the non-payment of the invoices including when one account was closed in 2022.
18. The Council apologised for the errors and acknowledged it could have done more to identify the debt and support Mr X to pay his bills. It said that while officers operated within the processes there was a lack of communication and a lack of joined up working. It said it would be reviewing its processes to ensure similar mistakes do not happen in the future. It also offered Mr X a reduction of the total amount owed by 40% and said it would set up a reasonable and affordable payment plan for Mr X.
19. Mrs Z remained dissatisfied and so complained to the Ombudsman.

Analysis

20. The Council has accepted fault in this case. It properly assessed Mr X’s care needs and completed a financial assessment. It then notified him of the cost of the care package. Mr X failed to make any payments and the arrears on his account accrued until he owed over £9,000. The Council has procedures for collecting arrears and failed to follow them. It also failed to carry out annual reviews of Mr X’s account.
21. There is nothing to suggest that Mr X’s failure to pay for his package of care for over four years affected the care received. Carers continued to visit Mr X and his assessed eligible care needs were met. The information provided also shows the Council re-assessed Mr X’s needs as his condition deteriorated and changed the package of care to reflect this. The fault in this case is therefore the failure to collect a debt.
22. When responding to Mrs Z’s formal complaint, the Council agreed to reduce the amount owed by 40%. Mrs Z, in her complaint to the Ombudsman, said she believed the debt should be reduced by 85%. The Council says this reduction was made a goodwill gesture in recognition the Council should have alerted Mr X to the debt sooner enabling him to take steps to prevent the debt increasing. The Council also says that when Mr X moved into residential care, he had sufficient capital to repay £5,369.55 which is the amount owed after the 40% reduction was applied. It says it will accept payments of £200 per month but that it is happy to discuss this.
23. I am satisfied the 40% reduction offered by the Council is appropriate. Mr X received the care he was assessed as requiring and so owed the money. The fault in this case was the failure to pursue the debt and allowing it to accrue. If the Council had acted without fault, Mr X would have been required to pay the full amount sooner than has actually happened. Mr X has therefore had the benefit of £9,000 that he otherwise would not have. I am not persuaded a further reduction is proportionate.
24. In reaching this view, I have taken account of the fact this is public money; the Council correctly assessed Mr X’s finances and Mr X still has savings that mean he can afford to repay this. While Mr X is now in residential care and so his only available income is the PEA, the Council is contributing to his ongoing care costs because of the level of his finances.
25. Mrs Z raises concerns about the assessment in August 2019 saying her father had been diagnosed with dementia at that time. She also says he is unable to read and so queries how much he understood about this assessment and that charges that would apply.
26. In response to my enquiries, the Council says that when the assessment was completed in August 2019, it had not been notified that Mr X could not read or that he had a dementia diagnosis. It correctly says a person is deemed to have mental capacity unless there is reason to believe otherwise. It says no concerns about Mr X’s mental capacity were evident when it completed the assessment and Mr X did not request any family members to be included. Even if the Council had been aware of the dementia diagnosis, this would not necessarily lead it to conclude Mr X did not have capacity to make his own decisions. While I appreciate Mrs Z’s concerns, I am not persuaded the Council held evidence that suggests fault in how it handled Mr X’s assessment and the issue of mental capacity.
27. The Council has already provided a suitable remedy for this case. This includes an apology to Mr X, the 40% reduction in the amount owed, an agreement to find a suitable repayment plan and a review of its processes to ensure similar mistakes do not happen in the future. I consider this is a suitable outcome and so I am not proposing any further remedy.

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Final decision

28. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has already provided a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman