Trafford Council at fault for making no attempt to carry out a financial assessment

Decision Date:   08th December 2022

What happened

Mr X complained to the LGSCO that he was charged for care without his agreement, without a financial assessment and that he continued receiving invoices for care after cancelling the relevant care package. This caused him considerable and ongoing distress.

Following a fall in June 2021, Mr X, an elderly gentleman, was admitted to hospital. To facilitate his continued independent living at home, the Council, without charge, arranged for three free weeks of reablement support, provided by an agency. This was explained in an email in early July.

Mr X was discharged in mid July 2021 [around the 15th, we infer. It is clear that the Council was paying for the reablement service, not the NHS as an interim or step down package.] 

Two weeks later on 29 July 2021 he engaged in a phone based care review [more likely a first time Care Act assessment, we think] and agreed to a financial assessment. The Council said he was sent a financial assessment form [one cannot tell from the report when it thought that that had been sent] and on 2 August 2021 his daughter, Mrs P, was emailed a pertinent fact sheet and confirmation that Mr X‘s care package would be chargeable after three weeks.

According to the Council, Mr X failed to complete a financial assessment form and was sent a letter on 23 July 2021 stating that if he didn’t disclose his financial information, he would be charged the full cost of his care. Mr P’s position to the council and the LGSCO was that Mr X did not receive the financial assessment form or the letter and that Mrs P had not received the email or factsheet.

Mr X was charged for the entirety of his care from 23 August 2021. In October he received invoices for £363 and £874 which Mr P said this was his first awareness that Mr X was being charged. Mr X cancelled his care package but, due to communication errors between the Council and care provider, council charges continued until April 2022.

Mr X complained to the Council who upheld the portion of his complaint relating to the ongoing invoices, but rejected the remainder on the basis that Mr X had failed to provide information and ‘officers’ had advised his care package would be chargeable. Thereafter Mr X complained to the Ombudsman who made enquiries. The council said 

  • It is service users’ responsibility to provide financial information.
  • A ‘light touch’ assessment, absent such information, justifying an assumption that Mr X had above the pertinent capital threshold, had been done which made him liable for the full cost of his care.
  • A note of an August discussion with Mr X and Mrs P indicated their agreement to a long-term care package but no record of Mr X’s intent to refuse chargeable care was found.

What was found

The LGSCO accepted that the Council had informed Mr X’s relatives that only the first three weeks of Mr X’s reablement care would be free and had provided a fact sheet, both of which gave information about financial assessments as a tool to establish how much Mr X would need to contribute towards his ongoing care. The Council was not at fault even if these had not been received by Mrs P, as Mr P claimed.

The Council’s position was always that Mr X had failed to complete the financial assessment which justified charging the full cost after a light touch assessment. This claim relied on a letter sent 23 July 2021 which Mr X said he did not receive.

The LGSCO said the chronology from the case notes cast doubt over whether this letter was ever sent.  

During a phone on 29 July 2021, reviewing officer ‘J’  recorded she had discussed finances with Mr X who stated his savings fell below the threshold, that he had good pensions, gave permission for a financial assessment and asked the reviewing officer to speak with his daughter (Mrs P), which she did on 02 August 2021. Mrs P agreed on her father’s behalf to a long-term package of care; there was no actual indication finances had been discussed. Thereafter, when actioning the care package, officer ‘J’ noted she had requested a financial assessment on 29 July 2021

As of the date of 23 July, the date of the only hard copy letter the Council asserted it had sent, the evidence, according to the Council’s records was that Mr X had not yet agreed to a financial assessment and officer ‘J’ had not actioned one. To the investigator’s mind, that did not sit well with the suggestion that within 9 days of hospital discharge he had been sent a financial assessment form, AND a chaser letter on 23 July, warning him of the risk of being assumed to be a full cost payer. 

Additionally, the LGSCO was provided with an undated and uncompleted financial assessment form but no evidence as to why it was blank or that it had ever actually been sent to Mr X for completion.

The investigator concluded as follows: 

23. If the Council was aware Mr X had already been subject to a light touch assessment (as per its letter dated 23 July 2021), this should have been mentioned to Mr X and Mrs P by Officer J when she spoke to them on 29 July 2021 and 2 August 2021 respectively, rather than saying she would be requesting a financial assessment. Mr P says when they heard nothing further from the Council they assumed, having told the Council Mr X had less than the relevant threshold in savings that it was being provided at no cost to him.

As such, the LGSCO concluded that Mr X was not informed that he would be charged before his care package began, nor (as should have happened) was he sent an invoice four weeks after it commenced. Had these things happened Mr X would have been able to cancel the package sooner.

Therefore the Council had failed properly to advise Mr X of his liability to pay his full care package costs and had not satisfied the investigator that they had attempted to carry out a financial assessment. This was fault. 

Further fault was found regarding the continued invoices sent to Mr X until April 2022, although having accepted this should not have happened, the Council had taken action to prevent a repeat of the same problem, thereby negating the need for further service improvement recommendations.

With regards to a remedy – having accepted Mr X was always clear that he did not want a care package he would have to pay for, that he had immediately cancelled the care when this situation arose, that he had experienced significant distress and anxiety about how he would settle such a large bill, – the LGSCO found injustice and recommended that the Council, should apologise to Mr X;  cancel all outstanding charges; pay £100 as a symbolic payment related to the distress caused; and reflect on the issues raised in the LGSCO statement so as to identify areas of service improvement and thereafter present a report to the LGSCO focused on preventing the recurrence of similar problems; finally, the Council should provide evidence that all of these actions were complied with.

Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public. 

Reablement is a service which is free for up to six weeks, and provided in general BEFORE assessment for long term Care Act care services has been completed, and provided under s2 of the Act. It is not an automatic entitlement because it has a particular purpose for which one might not be well equipped or suited. It can be provided under s18 and not merely under s2 of the Act.  This is one way a local authority may choose to meet its s2 Care Act 2014 duty, to prevent, reduce or delay a person’s needs for care and support by preventing deterioration and dependency on support from others. 

Sometimes councils try to make eligibility for longer term care, dependent or conditional upon engagement with the reablement team, and the legality of so doing is a very unclear area of the law. 

Regulations require reablement, when provided, to be free for up to 6 weeks. The assumption is that one goes on to a long term care package after an assessment at the end of any re-ablement period. But with regard to charging for reablement after that point, the Guidance says at para 2.62 that 

… whilst the local authority does have the power to charge for this where it is provided beyond 6 weeks, local authorities should consider continuing to provide it free of charge beyond 6 weeks in view of the clear preventative benefits to the individual and, in many cases, the reduced risk of hospital admissions.

For this particular client, three weeks’ reablement care had been determined as appropriate. During those weeks the Council had a duty to conclude an assessment of the client’s needs, to ascertain which, if any, of the identified needs were eligible for ongoing care and support, to set out a care plan defining how those eligible (and other) needs would be met, to consider whether to exercise its discretionary power to make a charge for the resulting package of care, and if so, to conduct a financial assessment to establish the level of that charge, before notifying the client of the amount, prior to making those charges.

Councils are not supposed to levy charges until a financial assessment has been done. Given backlogs, they may have been experimenting with streamlining this part of the process and no doubt assumed that if they warned someone that without an assessment form being completed, one would be at risk of being assumed to be a full cost payer, that would be enough

This report shows that that is not good enough: the law requires that the person cannot be charged until the process has been completed, subject to a person’s refusal to co-operate. The LGSCO seems to be saying that silence cannot be treated as refusal, which makes sense given that correspondence (even if it has genuinely been sent) can and DOES go astray; and that notification that one is now being regarded as not wishing to BE financially assessed is the very least that is required together with an amount. A light touch assessment is not the same as NO assessment or a light touch assessment but no record of the outcome – so recorded delivery letters would seem to be a good idea, to our minds. 

Despite the duty in s17(6) of the Care Act, to provide a written record of the outcome of the assessment, no records to that effect were provided to the client, or even to the LGSCO during its investigation.

This would also have contravened Trafford Council’s own charging policy which states it “must also inform the person when a light touch assessment has taken place and make clear that the person has the right to request a full financial assessment should they so wish, as well as making sure they have access to sufficient information and advice, including the option of independent financial information and advice”. 

This has been taken from the statutory Guidance at para 8.62. None of which appears to have happened.

Further, regulation 10 of the Care Act Charging and Assessment or Resources regulations sets out the circumstances in which a light-touch assessment may be used, including – which is specifically pertinent in this case – when a person has refused or refused to co-operate with an FA

Whereas, in the LGSCO outline provided, there appears to be a lack of evidence from the Council that would indicate an assessment was ever offered before 29 July, let alone refused. The Council did not appear to have given the LGSCO any dates as to when, prior to 23 July 2021, a financial assessment form was sent to the client or when and how he refused to engage in the assessment process.

This was no doubt part of why the investigator found on the facts and balance of probabilities that the letter and form had not been sent. These things would necessarily have taken place in the week between 16 July 2021 and 23 July 2021. This would have been an unusually short time frame to send a form to the client, and expect it to be returned and filled in, after discharge from hospital. 

The implication is the claim that it had been sent was a retrospective ruse, which may well have been why the LGSCO required evidence that a wider service review would indeed be organised.

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.The full Local Government Ombudsman report on the actions of Trafford Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/charging/22-001-186

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