Oldham Metropolitan Borough Council at fault for incorrectly charging for services

Decision date: 13th September 2019

What Happened

Mr X complained on behalf of his mother-in-law, Mrs Y.

Mrs Y went into hospital in May 2018 with breathing problems. The Council visited her on 20 June where they decided she would benefit from their Reablement service. The Council proposed three calls a day to help with food preparation and medication, and to ensure safety when washing, showering and dressing.

Mrs Y said she did not want direct help with personal care. She also said she did not want long-term services.

Mrs Y returned home on 20 June. When the Reablement Team visited, Mrs Y said she did not need any help and could cope on her own.

Following contact from Mr X, the Reablement Team visited again on 25 June. Mrs Y agreed to accept one call a day from the Reablement Team in the mornings. She would not accept a call in the evenings, although the Council offered one.

Mrs Y went back into hospital on 2 July with breathing problems and a temperature.

On 12 July Mrs Y was fit to go home. The Council assessed her needs. The Council told her she would need calls from two carers four times a day and would also need to live downstairs.

The Council did not identify any grounds to question Mrs Y’s mental capacity. The assessment contained a “client declaration” which included these statements:

  1. “I confirm that it has been explained to me that I will be required to pay towards my care and support needs and the amount will depend on my financial circumstances. I understand that the maximum could be the full cost of my services and that the financial assessment completed calculates how much my contribution will be,”
  2. “I understand that if I refuse a financial assessment I will have to pay the full cost for my services, if I change my mind at a later date any reduction in my charges will not be backdated”.

When the Council visited the next day, Mrs Y reluctantly agreed to accept the proposed care package. The Council told Mrs Y about its charging policy and the need for a financial assessment, to which she agreed.

Mrs Y’s July care and support plan said; Mrs Y’s indicative personal budget was £172 – £240 a week but did not identify an agreed personal budget. It referred to four calls a day.

On 17 August the Council assigned an Officer to do a financial assessment for Mrs Y, to find out how much she could afford to pay towards the cost of her care. On 21 August Mrs Y told the Officer she would need a day to gather information, so the Officer arranged to visit her the next day. The Council had no record of a visit on 22 August, nor anything to explain why it did not go ahead.

Mrs Y went back into hospital on 29 August. The Council visited her on 31 August to discuss the arrangements for returning home. The care agency said it could restart its visits on 3 September.

The Council visited Mrs Y in hospital again on 3 September. There was a long record of the visit, which suggested it took the form of a review of her needs before her return home later that day. It again said Mrs Y would receive four calls a day from the care agency.

By 11 September Mrs Y was back in hospital.

The Council tried calling Mrs Y on 17 September to arrange a home visit on 25 September to review her needs, but she was still in hospital. Its records said it arranged for a letter to be sent to her about visiting at 10.30 on 25 September.

The Officer assigned to do Mrs Y’s financial assessment tried calling her on 19 and 20 September but there was no answer and no facility to leave a message.

The Council visited Mrs Y to review her care package on 25 September. Mrs Y said she had not received a letter about the visit. After reviewing her needs, the Council said it would reduce the number of carers visiting on each call from two to one.

The Council wrote to Mrs Y on 26 September. It said she had not responded to three attempts to complete a financial assessment. It said she would therefore have to pay the full cost of her care.

Mrs Y went into hospital again on 3 October. The Council was going to restart her package of care when she went home but Mrs Y cancelled it. Her family met her care needs.

By January 2019 they were struggling to cope and contacted the Council again. But Mrs Y died later that month.

There was no dispute over the fact that Mrs Y had over £23,250 in capital, so would have had to have paid the full cost to the council of her care. Mr X said:

  1. they knew there would be a charge for care but did not know when reablement stopped and the chargeable care started;
  2. the first they knew about the charge was when the Council wrote to Mrs Y on 26 September;
  3. Mrs Y thought she would be paying £7 a week;
  4. Mrs Y would not have agreed to care if she had known what she would have been expected to pay.

The Council accepted its invoice for care provided from 1 to 8 October did not take account of the fact Mrs Y went into hospital on 3 October. It therefore corrected this.

What was found

The Council did not give Mrs Y the opportunity to have someone else with her when it assessed her needs in hospital.

It is unrealistic to expect people to remember everything they have been told, particularly when they have been ill in hospital. The Council should provide written information so people can make informed decisions about their care.

The Statutory Guidance says care and support plans must include the final personal budget. But the Council’s care and support plans only included the indicative personal budget. The Council must have known how much the care it was commissioning would cost. It should have shared this information with Mrs Y. Furthermore, there was no evidence the Council ever gave Mrs Y a copy of her care and support plan, as required by the Statutory Guidance.

The Council did not refer Mrs Y for a financial assessment until over a month after it assessed her needs. There was nothing to explain why the financial assessment first planned for 22 August did not go ahead. The Council later told her she had failed to respond to three attempts to do a financial assessment. But the evidence did not support that claim. When the Council could not get through to Mrs Y over the telephone, it should have written to her to arrange a date for a financial assessment.

The failings above amounted to fault.

It may have been clear to the Council that when it started providing care in July it was no longer providing reablement care. But it was not clear to Mrs Y or her family because the Council did not provide clear information. When told what she would be charged, Mrs Y decided to cancel the care arranged by the Council.

Given that Mrs Y decided to cancel her care when she realised how much she had to pay, the LGO considered that it seemed likely she would not have accepted chargeable care if the Council had provided clear information about the charges at the start.

The LGO recommended the Council apologise to Mr X for its failings, waive 50% of the care charges and pay him £250 to reflect the time and trouble he was put to in pursuing his complaint.

Points for the public and for councils

  • It does not emerge from this particular report that there is an important difference between refusing a needs assessment, refusing a financial assessment, refusing to pay charges and refusing a service. If one is legally literate, it is obvious that that difference can matter for the purposes of assessing fault and illegality on the part of councils.
  • Refusing an assessment of needs is a legal right if one has capacity. If one does NOT, there is still a duty to assess, otherwise how would cognitively impaired or cognitively atypical, entrenched people ever get services?
  • Refusing a financial assessment is one’s right but it doesn’t negate a duty to meet assessed needs. The law is that one is liable for the charge for one’s services, unless one satisfies the council that one’s means compel a reduction of the full price.
  • Refusing to pay for the charges is irrelevant to the right to have one’s needs met – the council can sue the person for the debt.
  • Refusing services, with mental capacity, goes directly to the heart of the duty to meet needs. It discharges to the council from the duty.
  • If one refuses services BECAUSE of the cost, one is doing oneself out of the right to receive care. That may well be one’s choice, but it needs to be an informed choice, knowing that one can still receive the services and argue about the cost later. Many people would of course prefer not to court hostilities and the debt recovery process but many people will NEED the services, regardless, and won’t have family willing or able nearby, to step up, to save on the expense / thereby inherit more.
  • The whole point of a charging policy is that it’s a political choice to balance public and private and free resources so that ill and disabled people live an affordable but reasonable quality of life. If nobody tells the council’s elected Members that people are refusing care because of the cost social care from the council, subsidies of the needy will disappear completely and we will all be left to the happenstance of our own savings and the private market in services or goodwill of our relatives.
  • Reablement cannot be charged for, for the first 6 weeks. It’s a service that is provided by way of prevention and reduction of longer term needs and it is a different thing to a post-assessment service provided by way of a care plan.
  • A care plan MUST be produced after a finding of eligible assessed unmet needs. It must be transparent, evidence based and rationally sufficient.
  • It is never enough to just put in an indicative amount because the Care plan will not be finalised by reference to the individual’s actual needs, and the charges have to be based on the finalised care plan.

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The full Local Government Ombudsman report of Oldham Metropolitan Borough Council’s actions can be found here