Decision Date: 16 May 2023
What happened
Ms X complained that the Council failed to advise her, or her father, about care charges, issuing a backdated bill, after seven months of care provision, for more than £6,000.
In August 2021, the Council undertook a care assessment for Ms X’s father and made a referral for a financial assessment. A care package started on 8 September 2021, and the Council provided Ms X with an ‘Agreement to pay’ form which stated that:
- ‘’Ms X understood her father would need to pay towards the cost of care provided by the Council.
- Any payment due would be based on a financial assessment.
- If Ms X’s father had more than £23,250 in savings he would not be able to get any help to pay towards the cost of care.
- Ms X’s father may have to pay a backdated charge from the date he started to receive care from the Council.’’
Ms X’s father did not have savings above the £23,250 threshold. Ms X informed the Council of this and signed and returned the form.
The Council completed a financial assessment for Ms X’s father on 31 March 2022 [33 weeks after the initial referral]. Following this, the Council informed Ms X that her father’s maximum contribution would be £1,055.19 per week, with a likely cost of £226, and sent a bill for backdated care provided since September 2021 for more than £6,000.
At the end of April 2022, Ms X contacted the Council querying the bill. She reiterated that her father had less than £23,250 in savings and that because she had not heard from the Council for seven months she assumed that there was no charge for the care. Ms X said that once informed, she understood that her father would have to contribute towards his care, and was happy to do so going forward, but was unhappy about the backdated charges.
The Council placed the bill on hold whilst they investigated Ms X’s complaint, responding in October 2022 apologising for the delayed response to her complaint, and the delay in completing the financial assessment. It reiterated that the outcome of the financial assessment was that Ms X’s father would pay towards his care package, and that he owed a backdated amount of £6,212,92. It also apologised for failing to send a letter to Ms X in advance of sending the bill.
Ms X requested a review of her complaint in November 2022, reiterating that she was happy to pay towards her father’s care from March [when she was made aware of the charges] but was unhappy with the backdated bill.
The Council acknowledged that there had been a delay in providing Ms X with specific information about the costs of her father’s care, and that it should have informed Ms X when it knew there was going to be a delay. It further responded that it could not have advised Ms X of what her father’s contribution would be until it had completed the financial assessment, but that she had agreed to backdated charges by signing the ‘Agreement to pay’ form.
What was found
The Care and Support Statutory Guidance says that the cost of a person’s care should be detailed in the personal budget and care and support plan. The Council failed to inform Ms X about her father’s personal budget and the LGSCO found that none of the information provided to Ms X gave any suggestion about what her father’s contribution would be, including the ‘Agreement to pay’ form.
The LGSCO reviewed the ‘Agreement to pay’ form which did not reference income, only referring to savings and investments above £23,250. Because Ms X’s father did not have savings above this threshold the LGSCO found that there was no way for Ms X to know that her father may have to contribute, nor how much. This failure to provide ‘’clear and transparent [information],so people know what they will be charged’’ (para 8.2 Statutory Guidance) was fault.
Whilst there is no statutory timescale for completion of financial assessments, the Ombudsman stated that it would expect this to take no longer than four weeks. The Council took 33 weeks following the care assessment to complete the financial assessment, a delay of 29 weeks beyond the expected timescale. The Council provided the LGSCO with no good reasons for this delay. This was fault.
Despite this fault, the LGSCO found that Ms X’s father had continued to receive care, with Ms X confirming she was happy to pay towards this care going forwards [we presume this means that she had spoken with her father and he was happy to pay, or that perhaps she was his LPA, but this is not mentioned in the report]. The LGSCO therefore found that had the Council completed the financial assessment without fault it is likely that Ms X would have agreed to pay for her father’s care during the preceding seven months. The LGSCO therefore felt it was not appropriate to remove all of the care charges for this period, recommending instead that the Council removed half of the care charges from four-weeks after the care assessment up until the date of the financial assessment to reflect its fault.
Ms X requested the Council investigate her complaint on 26 April 2022, but the Council failed to resolve the complaint through Step 1 or Step 2 of its complaint process, instead moving to Step 3 of its complaint process. Step 3 of the Council’s complaint process set out that it should provide a complaint response within 20 working days unless there were exceptional circumstances. As there were no exceptional circumstances in Ms X’s complaint, and it took 123 days longer than its own deadline to provide a final response, this was also fault.
The LGSCO further recommended that the Council pay Ms X £100 in recognition of the distress, frustration and inconvenience caused by its poor communication, in failing to send notification of the backdated bill in advance, and for its delay in responding to her complaint.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
S.14 of the Care Act 2014 gives local authorities the power to charge for care and support and s.17 explains that when a local authority makes this decision, it must assess the adult’s financial resources to calculate the amount (if any) the adult would be able to contribute towards the cost of the care and support provided.
When a local authority completes a financial assessment, it must have regard to The Care and Support (Charging and Assessment of Resources) Regulations 2014. The Regulations set out that a council should be “clear and transparent, so people know what they will be charged”.
Whilst there is no time-frame for financial assessments to be completed, this should be as quickly as possible, in order to avoid people being faced with large and unexpected bills, and to be able to make an informed decision as to whether they want to continue with the care with any accompanying costs.
We think it is interesting that the LGSCO has come up with a four week target as indicative of an average appropriate timescale, and implicitly good administration. We know of many councils leaving it a lot longer than that. The point is that the Care PLAN is supposed to contain the budget which is made up of this assessed charge plus the shortfall, and the person is eligible from a good deal sooner anyway.
We think that this council was still stuck in Covid mode, during which period, the Guidance on easement of the normal rules had suggested that if a council wanted to, it could tell people that it was not doing financial assessments at the time, and backdate, as long as they’d been told that there would be an assessment later, and the possibility of retrospective charging.
The approach to what should be waived and what should still be regarded as owing underlines that the remedy from the LGSCO turns on injustice arising from the fault.
If the person had actually spent their money on something else in the meantime, and had refused to pay the debt and been sued, and defended the case on public law grounds of breach of the Care Act, we think that a court would likely have found that the debt was unenforceable.
The full Local Government Ombudsman report on the actions of West Sussex County Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/charging/22-012-800