Decision Date: 22 February 2022
What happened
Mr X complained that the Council incorrectly invoiced him for care costs. He says he did not ask for home care, and when he asked about payment the Council told him not to worry about it. He said he asked the Council to reduce the number of daily carers’ visits because they could not complete care tasks in three out of four care visits, but the Council would not agree to it. He says he was surprised and distressed to receive a large bill for care he did not ask for.
In 2019, following a fall, Mr X had been admitted to hospital. He was asked if he wanted a care package on discharge, which he initially declined. In October, a social worker met Mr and Mrs X in hospital and discussed a care package for his discharge as well as his finances. The social worker produced a care and support plan outlining the care to be provided and the financial contribution to be made.
The care and support plan outlined four daily visits lasting 30 minutes from two carers. The care plan indicated that Mr X would receive assistance with transfers from bed to chair/chair to bed using a hoist and sling, which needed three people, so it included Mrs X. Assistance would also be given with toileting and personal care. In October 2019, the Care Provider began caring for Mr X.
In the Council’s financial assessment for Mr X, it assessed him as over the capital limit [£23, 250] so he was responsible for the full cost of his care.
In November 2019, an Occupational Therapist involved with Mr X visited and found the sling (used with the hoist) was “no good” and so was not to be used.
Care records show that, also in November, Mr X informed the carers that he wished to reduce the number of care visits as they were not all needed. The Care Provider advised him to raise this with the Council.
In December 2019, a care review was carried out which stated that Mr X could not be transferred from bed to chair/chair to bed due to the inappropriate sling. It also noted that a reduction in care hours was wanted. The Council would need to speak to the Care Provider and Occupational Therapist before making a decision to remove care. Following the review the Care Provider and Occupational Therapist did not recommend a change in care. Shortly after this review, Mrs X called the Council indicating a reduction in care as it was neither wanted or needed.
In late December, Mr X received the first care invoice [we do not know the reason for the delay]. Then, in January 2020, the Council was again asked to reduce the care by Mr and Mrs X because the carers could not provide the care needed due to the hoist issue and because of the cost being too high. They asked for one visit a day and not four, to which the Council agreed.
The next day, the Council reviewed Mr X’s care and support plan. It indicated that Mr and Mrs X paid for a service that was not needed as Mrs X provided the majority of care after the first care visit. A few days later, carers began providing the new regime of care once a day, as requested.
Shortly after, Mr X complained to the Council as he was told that a care package was needed which he neither wanted and often did not need. He said every time he or Mrs X asked about care costs, he was told not to worry.
The Council responded that Mr X asked for support in October and that it was acknowledged that he was over the capital limit, and in turn had agreed to the care package starting when discharged. The Occupational Therapist who visited Mr X in hospital discussed equipment he would need, and in that conversation stated that he would not be charged for the cost of the equipment. The Council understood how this could be misunderstood as costs for care charges, which would always be chargeable.
The care plan was drawn up with input from Mrs X, and set out how much the care costs would be each week. The Council also stated that in the review in December no concerns or changes were identified and as such four visits a day would remain.
Mr X responded to the Council indicating that he was never informed of the amount of contribution he would pay despite asking repeatedly, and that the hoist, which was provided as part of his care, was not successful due to the discomfort it caused. Mrs X was still his main carer and he still received four visits per day even though only one provided care.
Mr X complained to the Ombudsman. He complained that he did not ask for the care package that was put in place when he was discharged from hospital.
What was found
According to records, the hospital social worker carried out an assessment of Mr X and that he was “in agreement to have support on discharge” and that he would “require a package of care x4 a day double up on discharge. Wife is in agreement to support.”
The records from the following day show that the social worker had a further discussion with Mrs X about the “the request for funding”. The records state “Mrs [X] stated that [Mr X] has savings slightly above [the Council’s] threshold and would like support in arranging [a] package of care and also would like a financial assessment.”
There was no evidence that the Council told Mr X he had to have this care package and the LGSCO did not agree that Mr X had not asked for the package of care. The LGSCO found that Mr X could have declined the package of care at any time as he did when initially approached. Therefore, the Council was not found at fault.
Mr X complained that the Council incorrectly invoiced him for care costs and that the Council did not tell him how much he would be expected to pay towards his care costs. The records show that the Council discussed Mr X’s finances with Mr and Mrs X but not the contribution to his care costs. The Council accepted that it did not have any signed documents informing Mr X he would have to contribute.
The Guidance states that the approach to charging should be clear and transparent so people know what they will be charged but there was no record of the information and advice given by the Council to ensure that Mr or Mrs X understood about charging.
The Council failed to have proper records about what was discussed, or that charging was explained to Mr and Mrs X, in line with the guidance. This fault caused Mr X uncertainty about what he would be expected to contribute, which was injustice.
Mr X complained that when he asked the Council to reduce the number of daily carers’ visits the Council did not agree to do this.
The care plan outlined the tasks needed. Transferring from bed to chair/chair to bed using the hoist was a large part of this. It was clear from November onwards the sling could not be used for transfers. The other main care tasks were personal care and assisting Mr X with his toileting needs which, apart from the first visit of the day, Mrs X was providing rather than the carers.
Records showed Mrs X asked carers to reduce the care package and she was told to contact the Council. The Care Provider’s records note Mr X told carers they were not needed in well over half of the three later daily visits.
In December, the Council carried out a review where Mr and Mrs X asked for a reduction in the care package. The review noted that Mrs X supported Mr X’s toileting needs. The result was that the Council did not agree to reduce the care as the Care Provider and Occupational Therapist did not recommend such a reduction.
It was obvious that carers could not provide a large part of the care as set out due to inadequate equipment and the personal care was not needed. It was clear the Council did not know that most care was provided by Mrs X. Care calls were supposed to be 30 minutes each, but they varied from 20 minutes to two minutes with the care log noting that care was not given, supporting Mr X’s version of events. There was no evidence that the Council had reviewed Mr X’s care records, which would have highlighted that some was not needed.
As care plans should be person-centred, Mr X should have had a greater influence on his own and the key principle of an individual being best-placed to judge their own wellbeing was not followed; neither was having regard to all the individual’s circumstances. In these regards the Council failed so was at fault.
The care package could have been reduced in December when it was requested. LGSCO enquiries identified that it was in fact reduced a month later, in January, after it was satisfied that Mr X understood the risk of reducing his care package.
This fault caused injustice to Mr X as he was charged for a month’s care that was neither wanted nor needed due to the failure to act. In this period, there were 105 care visits. Carers provided care on eight of these 105 visits. For the other 97, Mr X told carers they were not needed. They provided either minimal care on these occasions or, more often, none at all. This is evidence that Mr X did not need or want this amount of care but he was still being charged for it, as was the Council.
Mr X complained that when he enquired about payments he was told not to worry. No records show that Mr X was told this by the Council, but the records showed that he would not be charged for the cost of the equipment.
Where a conflict of evidence, or lack of it exists, the balance of probabilities may be used to determine findings. Therefore, it was found that confusion probably occurred around the issue of equipment costs and care package costs, as these occurred at the same time. Therefore the Council was not considered at fault.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
The Care Act 2014 says that it is a local authority’s duty to promote an individual’s wellbeing. ‘Wellbeing’ includes a person’s control over their everyday life.
‘Delivering Care and Support Planning: supporting the implementation of the Care Act 2014’ (the Guidance) says that the person must be genuinely involved and influential throughout the care planning process.
One of the guiding principles of the Act is supposed to be that development of a person’s care and support plan should be person-centred and person-led. The plan must detail the person’s needs that are to be met, and how those needs will be met. The plan must also be proportionate to the needs.
The Care Act has certain principles that run through it. These include: promoting wellbeing (see paragraph 11); the importance of beginning with the assumption that the individual is best-placed to judge their own wellbeing; considering the individual’s views, wishes, feelings and beliefs; and the need to ensure that decisions are made having regard to all the individual’s circumstances.
It is a cardinal principle that a person with capacity can refuse services. Putting this another way, services cannot be foisted or imposed on someone if they say no to them, understanding the consequences of that choice.
“The Council told them it needed to speak to the Care Provider and Occupational Therapist before making any decisions to remove care. The review said that following the Council’s reassessment, the Care Provider and Occupational Therapist recommended the care package did not change.” This is where things went really wrong in this saga and departed from the legal framework in our view.
The continuation of the care in this case seemed impractical, if not perverse, as it had already been deemed that care as planned, could not be provided, due to the inappropriateness of the equipment, i.e. the sling. Therefore, the supposed discussion that was held with the Care Provider and OT should have highlighted this, identified the difficulties, and subsequently led to a change in the level of care provision and a revision of the plan under s27.
As a full cost payer Mr X was entitled, under s18(3) Care Act, to ask the LA to arrange his care albeit he would need to pay full cost. However, if he had arranged the care himself it is inconceivable that he would have ended up being visited 4 times a day for no good reason. How failing to take notice of his remonstrations was promoting his wellbeing, we can only imagine.
It is obvious that in some instances the Council needs to become involved even when some one can self-fund for example the individual cannot organise the care or their needs are so high that they are not able to undertake this. However this was not the case with Mr X and if he had just purchased the service directly without the Council’s involvement this would have caused far less stress and uncertainty. We are interested to know if he was charged a shopping fee for this dubious privilege.
The full Local Government Ombudsman report on the actions of Bournemouth, Christchurch and Poole Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/charging/20-004-813