Summary: Ms X complains the Council has overcharged her late father for the care he received between May and August 2022. On the balance of probabilities, the Council has overcharged Ms X’s father for his care. It needs to apologise and reduce to charges to one call a day. It also needs to improve its working practices to prevent similar problems from happening again.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains the Council has overcharged her late father for the care he received between May and August 2022.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, sections 30(1B) and 34H(i), as amended)
4. 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, section 25(7), 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.

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How I considered this complaint

6. I have:
• considered the complaint and the documents provided by Ms X;
• discussed the complaint with Ms X;
• considered the comments and documents the Council has provided in response to my enquiries, including the care provider’s records;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Ms X, the care provider and the Council, for me to consider before making my final decision.

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What I found

What happened

7. Ms X’s father, Mr Y, lived at home with his wife. He had dementia and Parkinson’s disease, which affected his mobility.
8. Mr Y went into hospital in March 2022. When he left hospital, the Council arranged for H & M Care Agency Ltd (the care provider) to visit him three times a day (two care workers for 45 minutes in the morning, 30 minutes at lunchtime and 30 minutes in the evening) from 14 March. The Council arranged this as reablement support, which meant it did not charge Mr X until 15 May.
9. The care provider has provided two sets of records for Mr Y. One set is based on electronic call monitoring and includes the time each care worker logged in and out through an app on their mobile phone. Up to 17 July the records show three calls a day, apart from one cancelled call at lunchtime on 15 July. From 18 July they show one morning call a day up to 5 August. The morning calls ranged in length from 13 to 52 minutes.
10. The other set of records are handwritten and are signed by each care worker on each visit. They also record the care workers’ arrival and departure time and the support they provided, including whether Mr Y refused support and asked them to leave (which often happened). Between 15 May and 17 July three visits a day are recorded. From 18 July only one visit a day is recorded up to 5 August.
11. Ms X says the care workers only came twice a week, as her father did not need as much support as they had expected .
12. Mrs Y sent Ms X a text on 20 March saying the carer workers were coming in the mornings. She said Mr Y was not happy about it but would let them shower him.
13. On 23 March the care provider told the Council Mrs X wanted to cancel the lunch and evening calls, and they only needed the morning calls. It asked the Council for advice, but it did not respond.
14. On 8 April Mrs Y told her daughter in a text that the care workers were there for the last time, as they were not keeping them on. But they did keep them on.
15. On Monday 11 April Mrs Y sent a text to her daughter saying she had asked the care worker to come on Wednesday morning.
16. On 26 April the care provider asked the Council for an “update” on Mrs Y’s request sent on 23 March (see paragraph 13 above). The Council did not respond.
17. The Council contacted Mrs Y for a “welfare check” on 6 May. According to its record of the call Mrs Y said:
• the care was going well and they had no concerns with the support being provided;
• her husband sometimes resisted formal care, but she encouraged him and remained with him while the care worker was present;
• the care package may be reduced when Mr Y got into a routine.
18. The care provider’s handwritten records for 15 May say the carer workers attended in the morning for 10 minutes, at lunchtime for 9 minutes and in the evening for 10 minutes. The electronic records say care workers stayed 42/44 minutes, 31/29 minutes and 34/34 minutes respectively. For all other dates, the length of the calls in the paper records is in line with the electronic records.
19. On Sunday 5 June Mrs Y sent a message to care worker A asking them to come on Wednesday, not Monday.
20. On 8 June the Council received a referral from the NHS to reassess Mr Y. It said Mrs Y wanted to know what progress was being made with an adaptation to the front steps. It said she had also asked for respite, such as a sit-in service, so she could go out, as she was concerned about leaving Mr Y alone because of the risk of falls.
21. On Tuesday 14 June Mrs Y texted care worker A and said Mr Y had had a shower that day, as he had a hospital appointment the next day. She said they would see the care workers on Friday and apologised for the short notice.
22. On 28 June the care provider told the Council Mrs Y wanted to reduce her husband’s care package to three morning calls a week, as her husband only needed help showering.
23. The Council spoke to Mrs Y on 29 June. According to its record of the call, Mrs Y said she was not looking to reduce the care package to three mornings a week. She said they were currently receiving two calls a day to support with showering and were happy with the current support plan. She said they had not been invoiced for any of the care received since March. She said her husband’s capital was above the upper capital threshold (£23,250), so she had expected to be invoiced. She said she had received a financial assessment form but had not returned it as it was too long, and asked if there was a shorter form. The Council told her she still needed to return the form so its Financial Assessment Team could invoice her correctly. Mrs Y agreed to complete the form and return it.
24. As Mr Y had capital over the upper capital limit of £23,250, the Council assessed him as being able to pay the full cost of his care. The weekly cost of his care was £367.50.
25. Ms X has provided a photograph of a handwritten logbook, which includes entries for 4, 7 and 11 July. The entries say Mr Y took a shower at 09.00 each day. For 4 and 7 July they identify a second (untimed) visit and say “the client is refused” and appear to suggest (using dashes ‘-‘) there was a third visit with the same outcome. The care provider disputes the claim that these entries were made by its care workers and points out that the handwriting is not the same as that on the full set of records it has provided. It says the care workers did not recognise the handwriting and said it was not theirs. It says it used to keep two sets of log sheets for every client, but only one set was used, with the other “kept as an emergency backup and only used when the first one is completed”.
26. Ms X says her parents went away for a week towards the end of July. She has provided her parents’ bank statement for July/August 2022. This shows them spending money in a resort on the south coast between 26 July and 2 August.
27. The care provider’s records say the care workers visited each morning between 26 July and 2 August. They say Mr Y sometimes refused support, but accepted some support on 27, 29, 30 and 31 July. They say Mr Y was tired and in pain on 29 July, so his family called the GP.
28. On 1 August Mrs Y responded to a message from her daughter saying they had arrived home that evening. She said Mr Y was not well so she would take him to the GP the next day.
29. On 3 August Mrs Y texted care worker A to ask them to “come and give him a bed bath, a bit late if possible”, as he was not well enough to have a shower. The care provider’s record for the visit on 3 August said Mr Y had breakfast, was prompted with medication and had a strip wash and his continence pad changed. Its record for 4 August said Mr Y refused a meal as he was too tired and ill. It said the care worker’s changed his continence pad and cleaned the room.
30. Mr Y went into hospital in the afternoon of 4 August. On 5 August, when Mr Y was in hospital, the care workers recorded being at the property for 7 and 10 minutes. Mrs Y told them her husband was ill and had gone to hospital the previous afternoon.
31. When Mr Y left hospital at the end of August the Council arranged for the care provider to visit him four times a day.
32. Mrs Y made alternative arrangements to meet Mr Y’s needs from 24 October.
33. The care workers continued to record visits to Mr Y until 6 November.
34. Ms X complained to the Council in January 2023 about inaccurate invoices for the care delivered for her father. She said:
• the care provider had visited her father twice a week for 30 minutes from 15 May until he went into hospital in August.
• it had visited him twice a day for 30 minutes when he came out of hospital at the end of August;
• it had not visited at all from the week ending 30 October to 6 November;
• her mother had not paid anything as she was waiting for the Council to issue amended invoices;
• she had sent e-mails on 4 October, 17 October and 5 December, but had received no response.
35. When the Council replied to Ms X’s complaint in April, it said:
• The care provider had provided three calls a day from 15 May to 5 August, when Mrs Y said her husband had been taken into hospital on 4 August.
• It would adjust the charges to reflect the fact Mr Y was in hospital from 4 to 31 August.
• It would remove charges from 24 October when the care package ended.
• The care provider said the “discrepancies raised around timings and non‑attendance” were due to turning carers away or Mr Y refusing specific care tasks.
• Its contractual agreement with care providers said “When clients/family refuse care at the door/home the provider can still charge for the commissioned time. However, if the client/family give enough notice (generally 24-48 hours) to cancel then the agency will not charge. If the client is not at home and no prior notice has been given the provider has to follow the No Entry policy and can charge. The carers have to continue to attend (even if they know the person will not be there) until Brokerage send them written confirmation that the POC has been suspended or ended. The provider can continue to charge for the commissioned time until they get written confirmation. If the client is regularly out and returns late (and the carer can only provide a shorter time for care) the provider can charge the commissioned time.”
36. The Council wrote to Mrs Y’s Councillor. It said:
• The care provider told it on 24 October 2022 that Mrs Y wanted it to stop visiting, as she arranged for another care provider to support Mr Y from 24 October, so it would not charge Mr Y from that date.
37. The Council wrote to the care provider. It said:
• The care provider had initially delivered the care package as commissioned.
• The care provider told the Council about the family’s request to change the care package. Despite not receiving an updated purchase order or care plan, the care provider had altered the care package to suit the family’s request.
• From 1 June more than one call a day only lasted 5-15 minutes.
38. Ms X wrote to the Council on 28 April as she was not satisfied with its response. She said care workers only attended her father twice a week (Mondays and Tuesdays, though she says the latter should have been Thursdays) between 14 March and 4 August, to help him shower. She said her mother had told the care workers when to attend in person and by telephoning the care provider. She said it was not true that her mother had turned care workers away. She said no one had asked her mother to put her requests in writing. She sent a photograph which she said her mother had taken of the care records in July. She said her mother took the photo because she had been confused about why the care workers had said Mr Y refused care on two days when they had not turned up.
39. When the Council replied on 28 June, it said:
• Any changes to the care arrangements needed to be reported to the Council or the care provider’s office manager, not the care workers. The Council would then discuss the request with the family, assess the risk of making changes, then agree an adjustment and inform the care provider.
• The care provider needed 24 hours’ notice to cancel a call and avoid being charged for it.
• Mr Y’s needs had remained high, as Mrs Y had asked for respite in May, but this did not progress further than a conversation.
• Its records showed Mrs Y had confirmed Mr Y always had care workers three times a day “from 9 March 2023 to date”, which contradicted Ms X’s claims.
• Based on information from the carer’s call logs, email communication records and Mr Y’s needs, it had adjusted the invoices to reflect twice daily visits and removed the charges for the three weeks Mr Y was in hospital in August.
40. The care provider’s policy on cancellations and terminations says:
• If the service user wishes to cancel the service permanently, the arrangements will be as follows: you must give us at least 14 days’ notice.
• If the service user wishes to cancel the service temporarily, the arrangement will be as follows: you must give us at least 7 days’ notice.
• If the service user wishes to cancel any individual visits, the arrangements will be as follows: you must give us at least 24 hours’ notice, otherwise you will be charged in full for the visit.
• In the event of hospitalisation, the service will have been deemed to have ceased at the last visit. Fees will be chargeable for the visits that were due to take place during the 24 hours following the hospital admission.
41. The care provider says this information was in the folder it had left in Mr & Mrs Y’s home.
42. The Council did not produce a care and support plan for Mr Y until he was due to leave hospital at the end of August 2022.

Is there evidence of fault by the Council which caused injustice?

43. There is conflicting evidence for the care delivered. The care provider’s records indicate it provided three calls a day up to 17 July and then provided one call a day until 5 August. The care provider says Mrs Y would cancel calls at short notice but has provided no evidence of its contact with her. I would have expected it to keep records of that contact.
44. The evidence provided by Ms X indicates the care workers were only coming in the mornings by 20 March. Mrs Y told the care provider she wanted to cancel the evening and lunchtime calls. It passed this information on to the Council, but it did not respond. That was fault by the Council. It appears by April Mrs Y no longer wanted daily calls. The message she sent to her daughter shows she was not giving 24 hours’ notice to cancel calls.
45. When the Council contacted Mrs Y in May she said she was satisfied with the care. But it is not clear what care she was referring to (three calls a day, one call a day or two calls a week). They also spoke about possibly reducing the package of care, but again it is not clear what specific reduction she may have been thinking about. It seems likely Mrs Y’s satisfaction was with whatever informal arrangement she had made with the care workers.
46. The Council was at fault for not producing a care and support plan for Mr Y until he was due to leave hospital at the end of August 2022. Producing a care and support plan is a basic requirement under Section 25 of the Care Act 2014. The failure to confirm Mr Y’s care arrangements will have contributed to the lack of clarity over what Mr Y would be charged for. It also meant Mrs Y did not know what she needed to do if she wanted to make changes to the care arrangements.
47. By June, at least, there is clear evidence that Mrs Y had an informal arrangement with one of the care workers to rearrange calls at short notice. That should not have been allowed to happen. While the care provider may have had no knowledge of this arrangement, it remains fault for which the Council is accountable. Mrs Y’s message to the care worker supports the claim that they were not visiting every day.
48. However, at the end of June, despite having told the care provider she only wanted three calls a week to help with showering, at the end of June Mrs Y denied wanting that change when the Council spoke to her. According to the Council’s records, Mrs Y said they were receiving two calls a day to help with showering. That is an odd comment for Mrs Y to have made, as there is little evidence of Mr Y having more than one shower a day. Indeed, in the week leading up to Mrs Y’s call with the Council, according to the care provider’s records, Mr Y would accept no more than a strip wash, and not every day.
49. It is difficult to see how the care workers could have been visiting Mr Y between 26 July and 1 August 2022. The bank statement shows Mrs Y was spending money on the south coast and it seems unlikely she could have left her husband alone at home, given the level of his needs. This underlines the unreliability of the care provider’s records.
50. The text Mrs Y sent to care worker A on 3 August is ambiguous. It is not clear what the main purpose of the message was and whether it was to ask them to come the next day, to give Mr Y a bed-bath rather than a shower, or to come a bit later. The latter seems the least likely, as it features at the end of the message and Mrs Y appeared to acknowledge this may not be possible. If the care workers were coming every day, and had given Mr Y a bed bath earlier that day, there would have been no reason for Mrs Y to text them.
51. On the balance of probabilities, the evidence leads me to conclude that the care workers were for most of the time only visiting (or at least available to visit) once a day. The evidence clearly shows that from 18 July there was no more than one call a day. It also shows that not long after the care started, Mrs Y said she did not need the lunchtime or evening calls. The evidence also shows Mrs Y had an informal arrangement with the care workers not to visit every day. However, it is significant that when asked about reducing the calls to three mornings a week, Mrs Y said she did not want this. As the Council did not produce a care and support plan for two calls a day, or tell the care provider that was all that was needed, it is not clear what use could have been made of two calls. The evidence shows Mrs Y only wanted help with showering, and that was not a twice daily activity.
52. It follows from this that I do not accept the accuracy of the care provider’s records. The electronic monitoring system can be activated whether or not the care workers attend a call.
53. The Council was also at fault for telling Mrs Y she had to fill in the financial assessment form. If someone accepts they have capital over the upper capital threshold and therefore need to pay the full cost of their care, there is no requirement for them to share details of their finances with the Council. The Council can simply treat them as a full cost payer and start invoicing them for their care.

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Agreed action

54. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the care provider as well as the Council, I have only made recommendations to the Council.
55. I recommended the Council:
• Within four weeks, writes to Mrs Y apologising for not dealing with Mr Y’s care needs properly and for overcharging them, and agreeing to reduce the charges to one 30-minute call a day up to 25 July 2022.
• Within eight weeks, identifies the action it is going to take to ensure:
1. It always produces a care and support plan when it has identified eligible care needs;
2. Officers respond to requests for information from care providers;
3. Officers are aware that self-funders do not need to share their financial information if they are happy to fund their own care;
4. People receiving care and support know what they need to do if they want to make changes to their care arrangements;
5. Care workers do not make informal arrangements with clients about when they will attend.
56. The Council has agreed to do this. It should provide us with evidence it has complied with the above actions.
57. Under the terms of our Memorandum of Understanding and information sharing protocol with the Care Quality Commission, I will send it a copy of my final decision statement.

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Final decision

58. I have completed my investigation on the basis there has been fault causing injustice which requires a remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman