Summary: Mrs Z, on behalf of her father Mr X, complained the Council’s needs assessment failed to identify all his eligible needs and it delayed in completing a financial assessment which prevented her father making an informed decision and he now owes a debt of approximately £5,000. The Council accepts it delayed completing the financial assessment and has already provided a suitable remedy for the injustice caused.

The complaint

1. Mrs Z, on behalf of her father Mr X, complains the Council’s needs assessment failed to identify all his eligible needs and it delayed in completing a financial assessment which resulted in Mr X spending money without knowing he was not entitled to it.
2. Mrs Z says the delay prevented her father making an informed decision and he now owes a debt of approximately £5,000.

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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

6. The Care Act 2014 sets out council powers and duties relating to adult social care. It places councils under a duty to carry out financial assessments where they think they would charge a person for care and support to meet their eligible needs.
7. While the law and guidance do not specify a timescale for completing a financial assessment, the Ombudsman takes the view that in most circumstances, council should complete financial assessments before they create care and support plans and before any care services begin. This enables people to make informed decisions about the care and support they want, taking into account the financial impact.
8. The Care and Support Statutory Guidance says councils should provide information and advice to cover:

• the charging arrangements for care and support;
• how a person can plan for needing to pay for care in the future; and
• how they can obtain independent financial advice.  

9. The guidance says the information councils give should be sufficiently thorough to meet the person’s requirements at the time and be accessible to them.

Direct payments

10. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.

Disability Related Expenditure

11. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. The Care and Support Statutory Guidance sets out a list of examples of such expenditure. It says any reasonable additional costs directly related to a person's disability should be included. What counts as DRE should not be limited to what is necessary for care and support. For example, above average heating costs should be considered.

Key facts

12. This section sets out the key events in this case and is not intended to be a detailed chronology.
13. Mr X lives with his wife. Mrs X has care needs and receives direct payments to pay for a package of care to meet her eligible needs. The family employed a live-in carer who provided 24 hour care for Mr and Mrs X. Mrs X’s direct payments did not cover the full cost of this care and so savings were used to meet the difference in costs. The live-in carer also provided assistance to Mr X in respect of his care needs.
14. As Mr and Mrs X’s savings were reducing, a request was made to the Council for assistance. In April 2023, the Council assessed Mr X as needing three daily visits to help with personal care and the administration of medication. Mr X has a condition that requires him to take medication at specific times to ensure its effectiveness.
15. A financial assessment form was submitted for consideration by the Council’s finance team. The Council says that it had discussions with family members that the provision of care would be subject to a financial assessment. However, it has no evidence it provided information about charging and direct payments on the day of the needs assessment.
16. In June the Council set up a pre-payment account and began paying in £189 per week. Mrs Z says that she began using this money towards the cost of the live-in carer.
17. In October, the Council sent a letter saying Mr X was not eligible for the £189 payment. The Council also sent an invoice requesting repayment of the £4,860 already paid into the direct payment account. Mrs Z immediately contacted the Council saying it had taken over six months to complete the financial assessment and notify them there was no entitlement. She said the Council had failed to understand her father’s situation and it was unacceptable the money he currently pays for his care was not treated as a disability related expense. Mrs Z said the Council had not explained why it set up a direct payment account if it did not consider him eligible for any payments.
18. The Council replied apologising that it took so long to complete the financial assessment stating its target time was 10 working days. It said it could not include private care as a DRE. It explained that it was required to provide a package of care without completing the financial assessment and that clients are expected to pay from the date the care is provided.
19. Mrs Z escalated her complaint saying she was never told the funds were temporary or that Mr X could be required to pay them back. She questioned why the Council set up a direct payment account if the financial assessment had not been completed. She said Mr X is required to take medication six times a day at specific times yet the Council only assessed him as needing help three times a day. She also raised issues about other DRE’s and help required for both Mr and Mrs X.
20. On 21 November, Mrs Z cancelled the direct payment arrangement.
21. In its stage two complaint response dated December 2023, the Council agreed the time taken to complete the financial assessment was not acceptable. It says that it set up the pre-payment account while the financial assessment was pending and that it did not want Mr X to have to wait until the financial assessment was completed before the package of care started. It agreed that it if it had completed the financial assessment in 10 days then Mr X would have been in a better position to know whether to accept the care package as a full cost payer. It said the extra care costs Mr X was paying for the live-in carer could not be considered a DRE because the need for a live-in carer had not been evidenced. The Council offered a payment of £500 along with service improvements as a remedy.
22. The Council completed a reassessment of Mr X’s care needs on 22 January 2024. This found that Mr X required five hours of support per day. This was an increase from the 1.5 hours per day when previously assessed.

Analysis

23. The Council accepts it did not complete the financial assessment within the expected 10-day timescale. This is fault. The Council offers no explanation for the delay other than to say it was overlooked.
24. As explained at para seven above, we consider the financial assessment should be completed before the care and support plan issued to enable service users to make informed decisions. The Council says that it provided information about charging in this case though I note it cannot evidence it gave any information about charging on the day it completed the needs assessment. It also relies on the fact that Mrs Z was managing an existing direct payment for Mrs X and so assumed she was aware of the process.
25. The payments began two months after the needs assessment and one month after Mrs Z returned the completed financial assessment form. I have not seen anything to show the Council explained the money paid into the direct payment account could be recovered in full. This is fault and meant Mr X and Mrs Z were unable to make an informed decision. I note that once Mrs Z was aware Mr X was not entitled to the money, she immediately stopped using it and notified the Council.
26. However, I take the view that it is more likely than not that even without the delay in completing the financial assessment, the family would have continued to employ and pay for the live-in carer. Mr and Mrs X continued to receive the level of care required to meet their needs. I consider the Council can seek recovery of the money it paid in error but have made a recommendation below regarding the timescale for this.
27. Mrs Z also complains the Council failed to include the costs of the privately arranged care as a DRE. She says the Care and Support Statutory Guidance does allow the costs of any required privately arranged care services to be considered a DRE. The Council explained that it did not include the privately sourced care costs as it did not assess Mr X as requiring a live-in carer. I note the financial assessment included several other costs as DRE amounting to approximately £25 per week.
28. I am satisfied the Council has considered whether the private care costs should be treated as DRE. While I note Mrs Z disagrees with the Council’s view, this is not evidence of fault.
29. A recent reassessment of Mr X’s needs resulted in a significant increase in the amount of care required to meet his eligible needs. I note that Mrs Z did not request a reassessment until January 2024 and there is nothing to suggest she disagreed with the level of assessed care in April 2023.

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Agreed action

30. The Council should contact Mrs Z within one month of my final decision to discuss an affordable repayment schedule for the £4,860 it wrongly paid.
31. The Council should provide us with evidence it has complied with the above action.
32. I note the Council in its stage two complaint response set out actions it was taking to remedy Mr X’s complaint. This included a payment of £500 to recognise the distress caused. I am satisfied this amount is in line with the amounts recommended by the Ombudsman as set out in its Guidance on Remedies document which is available on our website.
33. The Council also undertook the following action to improve its procedures to prevent similar faults recurring:
• Additional training and a review of the financial assessment process to ensure all complete financial assessments are completed within 7 working days;
• A review of the communication pathways between Adult Social Care Direct Payments Team and the Adult Social Care Finance Team to ensure notification of full cost charge following the financial assessment;
• Appointment of an officer in the Finance Team to act as a direct payment lead who will be responsible  for the completion of charge calculations  and who will liaise  directly with the SDS Team to ensure the process  is more seamless; and
• A built-in six to eight week monitoring check on all new direct payment cases.
34. I consider the above actions provide a suitable response and so I will not recommend any further service improvements.

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Final decision

35. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman