Decision Date: 14 October 2024
Summary
Mrs B complained on behalf of her husband, Mr B, alleging that the Council had failed adequately to inform her of the charges it would levy for his care budget.
Additionally, she asserted that the financial assessment had not appropriately considered the contributions Mr and Mrs B paid to their daughter for outgoing costs, analogous (in their opinion) to rent, consequently meaning Mr B could not afford the package.
What happened
Mr and Mrs B were living in an annex at their daughter’s house (Mrs C), with care being provided to Mr B by Mrs B and Mrs C.
In February 2023, Mr B was admitted to hospital. He was assessed by an occupational therapist on 13th March 2023, who acknowledged that his relatives were no longer willing and able to provide for his care needs; funded support of some sort was going to be needed. There was a risk of falls, injury, hospitalisation and carer breakdown without support because Mrs B had her own health issues to contend with.
The Council received a referral for support on 29th March 2023, and Mr B was reassessed on 4 April 2023. The assessment noted that he required a total of 22 hours of support per week split between two care workers, if he went home. The social worker informed Mrs B that the Council’s Rapid Support Service (RSS) could begin on 6 Aprilth 2023, once the required equipment was in place in the annex.
Mr B was discharged from hospital on 6th April, but the support could not begin until 9th April. The Council was informed of the discharge on 7th April.
It called Mrs B on this day to explain the delayed start of the official package, and that the Council’s in-house Community Response Team would provide support cover from 7th-9th April. At this stage, Mrs B said she was happy with the service provided so far and that Mr B had taken to the support ‘like a duck to water’.
She was informed there would be a review of the plan in a few weeks, but if she had any concerns she should contact the Reablement service.
Mr B was necessarily readmitted to hospital on 8 April 2023. He was discharged on 12th April but readmitted on 13th April. The service was thus stopped.
Mr B was reassessed on 24th April. The social worker assessed that Mr B required the assistance of two carers for what would be the last part of his life, as he was now unable to mobilise. The social worker also explained that a financial assessment would be completed and a financial contribution would be required if Mr B needed long-term care. She thought he would be entitled to funding based on what Mrs B said about his savings.
Mr B was discharged on 10th May 2023 and the Council restarted the care package.
On 1 June, the social worker reassessed Mr B’s needs for care and support and concluded that he was entitled to long-term support. The social worker explained the charging policy to Mr and Mrs B and referred the case to the Council’s financial assessment team. Mr B signed the Council’s checklist confirming he had received the information about the charging policy.
Mrs B was contacted on 2nd June 2023 to make an appointment for the financial assessment.
The social worker further contacted Mrs B on 9 June to inform her that the new agency would take over the care package, and mentioned the rate they operated at (£21.36) so this was the amount Mr B would have to pay if the financial assessment concluded that he had to pay the full cost. The agency took over the care package on 12th June 2023.
On 28th June 2023, the financial assessment took place. The officer informed Mrs B of the expected contribution, subject to her providing relevant bank statements. Mrs B said she informed the Officer she would not be able to afford this, because of the payment made towards household expenses to which the officer responded she should wait to see the outcome of the final calculations once Mr B’s documents had been submitted and scrutinised. The Council considered any disability related expenditure and deducted £43.32on that basis. The Council’s charging policy said it would only charge 95% of the maximum it could charge and the Council reduced the contribution amount on that basis.
By 20th July, she was told that Mr B’s charges would be £302.27 per week towards his package of care which left him with a weekly net income of £264.80. The Council backdated the charges to 12th June 2023, the date he was told he was entitled to long term support, which suggested that the services prior to that date were free.
On 15th September 2023, Mrs B was sent an invoice. She then contacted the Council to inform them that Mr B could not afford the care package and would consequently stop the package. She said that they had now drafted a rental agreement between Mr and Mrs B and their daughter and started to record the payments in a rent book.
She also alleged that she had not been informed of the cost until she received the invoice.
Mrs B subsequently complained to the Ombudsman.
Mr B was charged for 10 weeks of care after 12th June commencement of long term care, when in fact he had received 13 weeks of care. However,
- In June 2023, no care was provided on four occasions.
- In the last two weeks of September 2023, no care was provided on 14 occasions.
What was found
Mrs B complained that the care plan was overly comprehensive and thus not financially proportionate to Mr B’s actual needs.
She alleged that the family was told Mr B would not be discharged from hospital unless they agreed to the care package.
The Investigator found no fault in this regard. The evidence illustrated that the relevant assessments were carried out by the appropriate professionals using relevant considerations. There was, furthermore, no evidence that the care plan was ‘forced’ upon the couple. No evidence was found indicating that Mrs B disagreed with the proposed care plan or raised concerns.
Rather, and conversely, written evidence indicated that Mr and Mrs B were happy with the plan and care provided. Indeed, as Mr B was receiving care from 1st June, and the long-term care plan only began on 12th June, Mrs B could have raised her objections to the care during these weeks.
Furthermore, whilst the evidence did suggest that there were numerous occasions on which the care was not actually provided as Mr B did not need it, the Investigator found that the Council was reviewing the package with sufficient frequency.
The care package was cancelled before the 3-month review could take place, and whilst it may have been good practice for the Council to review the care package earlier, Mr B had already been re-assessed 3 times in the previous months and no concerns had been raised by Mrs B that urgent review was necessary.
Moreover, on 28th June, Mrs B was provided with a good deal of information which could have enabled her to make an informed decision about the financial impact of the care provision. Further, from 20th July, after receiving the finalised assessment, the assessor found Mrs B was in a position to make a fully informed decision regarding the care.
However, the Ombudsman did find fault in that the Council failed to send Mrs B a copy of the care plan following its 1st June review.
Whilst no changes were made to the plan in comparison to the 28th April review, the Council nevertheless should have completed and communicated an updated care plan. The Council was thus ordered to apologise in writing to Mr and Mrs B for this fault, and to remind its relevant officers of the importance of sending a copy of the Care Act assessment (or reassessment as here) and care plan to the person being assessed or their representative.
Mrs B had further complained that the financial assessment did not appropriately consider the £650 paid monthly by Mr and Mrs B to their daughter to cover outgoings in relation to their occupancy of her attic, in their opinion, analogous to rent.
However, the investigator found no fault in the Council’s decision that this expense was already accounted for by the minimum income guarantee (MIG).
Finally, the Ombudsman found there was fault on the part of the Council in charging for care provided from 12th June 2023, before the financial assessment was communicated on 20th July 2023.
However, with regard to a financial remedy, the Investigator concluded that the injustice had already been appropriately addressed. In its invoice, the Council did not charge Mr B for the first three weeks of care received from 12th June 2023. Moreover, as a gesture of goodwill, the Council had agreed to exercise its discretion and reduce the invoice by £75 per week for the 10 week period charged for, ‘as if’ Mr B’s payment to his daughter, which clearly was being paid as a matter of fact, had been considered as rent.
This was the equivalent of three week’s contribution. As such, in real terms, Mr B was not charged for any care before 20th July 2023, but rather charged only 7 weeks out of a potential total invoice of 13 weeks.
The Council additionally agreed to apologise in writing to Mr and Mrs B for the fault, and to remind its relevant officers that financial assessments should be completed before the care plan is finalised.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
We think it’s interesting that the report does not mention Mr B’s views or whether Mrs B had any authority to make any decisions about care or charges.
The complaint illustrates the complexity in the interrelationship between entitlements to health, social care and means, as well as the importance of obtaining appropriate evidence.
Mr B was technically unable to claim that his share of their £650 monthly payment to their daughter to cover the cost of them living in her annex, as part of their financial assessment for care plan contributions, as a housing cost. The Council lawfully held this contribution towards household bills was covered by the minimum income guarantee, and thus not relevant in the financial assessment. However, it said that it would have considered it relevant if evidence of a rental agreement alongside separate bills could be produced. This underlines the importance of formalising financial agreements in order to meet a high evidentiary standard.
There is precedent on this issue, not mentioned by the LGSCO’s investigator, in the North Tyneside (C) case – which does indeed entitle councils to regard an informal payment to relatives for board and lodging as covered by the chargee’s Minimum Income Guarantee, if they are living in the same household, and not as a separate cost to be deducted under the auspices of housing costs (which deductions are for rent or mortgage payments).
That explains why the man’s share of the £650 would have had to have been considered differently, had there been a proper tenancy or lodger agreement, assuming that the annex was not a separate physical annex with separate bills etc in their own names. But if the money was actually BEING PAID, then of course it would have likely made Mr B’s charges feel unaffordable and a person is entitled to an overall consideration of affordability by ASC teams.
Furthermore, it is interesting to note that the discretionary ‘good-will’ gesture of the Council was regarded in the round, as remedying the separate injustice of backdating the charge to a period from before the point when the financial assessment was completed.
This approach seems to suggest a contextual, overarching approach of the Investigator when deciding upon remedies.
Despite the conundrum arising from the legislative structure, whereby the care PLAN has a budget in it and the budget includes the charges, which suggests that the plan cannot be signed off until the charges are known, this is not the way it works in practice, because the liability for the care arises from the point of eligibility plus a short reasonable time for putting in the actual care.
So we do not think that it is always wrong to charge before the assessment is completed, and the Ombudsman would go ‘under’ if that were the case. We know of councils who would be in dire straits both in financial terms and with regard to harming people if they waited to put the care in or waited to charge until after the FA was completed, because there is often a 3+ month delay in completion of charging calculations. What matters for the legality of charges as far as the LGSCO seems to assume in other reports, is that the person liable, or their representative if they lack capacity, is told of the fact of charges, and roughly what the charges will be, which was the approach suggested by the government during Covid, when charging officers were put to other work.
The ombudsman’s investigator set out its position as follows:
“The law and CASS guidance do not specify a timescale for completing a financial assessment.
The Act presumes the following order of events:
- The council carries out a needs assessment under section 9.
- The council makes a decision about the person’s eligibility under section 13.
- The council carries out a financial assessment under section 17. At this point a council also has the duty to meet the person’s eligible needs, but this is subject to the requirement for the council to prepare a care and support plan, as follows.
- The council makes a care and support plan under section 25. This section presumes the council makes the plan before care services start and stipulates care and support plans must include a personal budget, which in turn must be based on the financial assessment.
The Ombudsman’s interpretation has therefore been that, in most circumstances, councils should complete financial assessments before they create care a plan and before care services begin. This should enable people to make informed decisions about the care and support they want, taking into account the financial impact.”
We are not sure that Mr and Mrs B would have understood the significance of the change from reablement to long term care, given the Council did not complete a Care Act care plan in June 2023, and the level of care did not change. It had only been able to send the investigator the April reablement care plan, which would not necessarily have followed upon a full needs assessment.
On that topic, the Investigator said this:
“The Council must provide intermediate care and reablement care free of charge for up to six weeks, even if the person is above the capital threshold.
Intermediate care services are provided to people, usually older people, after they have left hospital or when they are at risk of being sent to hospital. Intermediate care is a programme of care provided for a limited time to assist a person to maintain or regain the ability to live independently.
Reablement is a particular type of intermediate care, which has a stronger focus on helping the person to regain skills and capabilities to reduce their needs, in particular through the use of therapy or minor adaptations. There is a tendency for the terms ‘reablement’, ‘rehabilitation’ and ‘intermediate care’ to be used interchangeably.”
They are not kidding!
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Hampshire County Council (23 017 135) report.
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