West Sussex County Council at fault for delayed information about care charges

Decision Date: 16th October 2019

What Happened

Mr and Mrs C complained on behalf of Mrs C’s mother, Mrs M.

Mrs M was independent and managed well before she went into hospital suffering from pneumonia. She returned home with reablement care on the 19 February 2018 with support organised for twice daily.

Mr C said that before the care support started, he was advised there could be a charge. He said he made it clear to the Council that if there was a charge, they would not want to use the carers because the family would be able to manage without them.

Mr C said that it was only when he received an invoice from the Council on 14 September 2018 that he found out there had been a charge. The invoice was £1,142.46 for six weeks’ care from 27 February 2018 to 5 April 2018.

The theory is that re-ablement is free – the law says so. Once an OT has recommended reablement support, a social worker will explain the “Charges for Reablement Service Agreement” to the client.

In West Sussex the social worker will check they understand it and will then ask them to sign their consent to the Agreement. The form says, among others, that:

  1. The support you receive will be free for up to six weeks. This is the maximum period and your actual stay may be much shorter as it will be dependent upon your progress towards planned goals.
  2. Following the free period there may be a customer charge for any further social care support/service that you receive.
  3. A Welfare Benefit Advisor will visit you and calculate your contribution.
  4. I understand that any reablement service I receive is free of charge for up to a maximum of 6 weeks.
  5. If I continue to receive any support/service after this free period, I understand that this will be chargeable and the actual contribution payable by me is subject to a financial assessment.

Mrs C signed this form on her mother’s behalf on 15 February 2018. Therefore, by signing the form she said she understood the information provided.

There was no mention in the LGO report of Mrs M’s capacity at that time, therefore it is unclear whether Mrs C had power of attorney, or whether she was simply helping her mother in signing the form.

The Council said that they provided leaflets on their reablement services to the family; however the LGO did not find any evidence for this. Nor did the LGO find evidence that the social worker actually explained the service to Mr and Mrs C before they signed the form.

Mrs M’s supposed reablement care consisted of CRS (Community Reablement Support) twice a day with an end date 3 April.

On 21 February 2018 an OT completed an assessment at Mrs M’s home, two days after her discharge from hospital. Following the assessment, the OT concluded that Mrs M would not be able to benefit from reablement but would need to have longer term help at home to sustain her independence.

Mr and Mrs C were not present during that assessment. However, the OT contacted Mr C by telephone afterwards. The OT recorded that they discussed the situation and Mr C agreed that reablement was not appropriate for his mother-in-law.

The OT’s record had said: ‘Talked about charging and explained that support is not for six weeks as Mr C said was stated in the hospital. Mrs M has savings under £23,250 so explained that I will ask for ongoing support twice a day and will request for a WBA [Welfare Benefits Adviser] to check on what Mrs M will be charged. Agreed that I will complete the paperwork by Monday 26 February and Mrs M will be charged from this date.’

The OT had another conversation with Mr C on 27 February 2018. The OT ‘agreed with the family that TOC and charging for this should be applied from today’. ‘TOC’ means the transfer of care arrangements at the end of a period of free-of-charge reablement.

Mr C confirmed with the LGO that he had a conversation with the OT, but said that the OT did not tell him they would be charged from that date.

The Council posted the “Charging for Care” form to Mr C on 6 March 2018 to complete, as part of Mrs M’s financial assessment. The Council advised Mr C they would contact him once a long-term care provider had been found, but Essex Care would continue until an alternative provider was in place.

Mr C contacted the Council on 5 April 2018, which was six weeks after Mrs M left hospital. Mr C said he wanted to terminate the Charging for Reablement agreement as he did not want to be charged in the interim whilst waiting for a new provider. He said they could manage without support in the interim, as Mrs M was mostly independent with personal domestic activities of daily living. He also wanted to find out how much Mrs M would need to financially contribute towards any ongoing care and then as a family they would make the decision.

The Council acknowledged that it took an unreasonable amount of time, before it could produce an invoice and tell Mr and Mrs C how much Mrs M would have to contribute towards the cost of her care.

Mrs M only received her invoice of £1,142.46 on 14 September 2018.

Mr C complained to the Council on 1st October 2018.

In the Council’s complaint response letter to Mr C in November 2018, the Council accepted its failure to produce an invoice in a timely manner. Furthermore, it agreed to reduce the final invoice to £571.23, as “a gesture of goodwill, and in acknowledgement of the delay with the original invoice being issued.”

What was found

When the support changed from reablement to a normal care package on 27 February 2018, Mr C was aware there could be a charge for Mrs M’s care support, going forward.

The Council acknowledged it failed to record if it provided information and leaflets to Mrs M and her family about the cost of care while she was in hospital. This was fault. However, Mr C was aware there could be a charge, and Mrs C had read and signed the Charges for Reablement Service Agreement.

The Council’s records also stated that Mr C agreed on 21 February 2018, that Mrs M would not benefit from further reablement support. The OT spoke to him about charging and agreed with the family on 27 February that the care package should transfer from reablement to a normal package.

The Council has acknowledged it subsequently took too long before it could tell Mr C what the charge would be. This was fault. It apologised for this and offered to reduce the outstanding invoice by half.

Although the LGO found fault by the Council, it was satisfied that the Council already carried out appropriate responses.

Points for the public, councils and service users and their families

  • This report does not address whether Mrs M had capacity when she came out of hospital to understand the interplay between charges and services, or whether her daughter or son in law had her informal authority to take decisions for her, by way of supporting her to return home, or some other form of lawful authority, regarding information sharing about her assets etc.
  • The signing of a form is a legal red herring, we think, because the liability for the charges does not arise under contract, so there is no need for offer and acceptance, ironically. It arises under the statutory framework, and this point can be made comprehensible to ordinary people who are not lawyers by reference to this obvious consequence if this were not the case: an incapacitated person would never be able to be charged, would they?
  • However, the signing by the daughter and the records do suggest that the relatives were just helping with her knowledge and consent, and were themselves just confused by the paperwork.
  • Reablement is free; it’s a preventive service, usually provided well before an assessment of needs under s9 of the Care Act, designed to get people out of hospital beds and to reduce the amount of impact one’s deficits in daily living abilities are causing, before an eligibility decision. It cannot be charged for if contracted for by the council – regulations prohibit that.
  • The point is that one does not have a right to reablement – it’s a service but it’s not provided under s18, usually, as a consequence of an assessment, an eligibility decision and a care plan. It is provided BEFORE assessment, in order to reduce the amount of ongoing care that will likely be needed long term. That is why it is not charged for under s14, and there is a special regulation saying it must be free even when provided under s2.
  • The consequence of all this is that one only GETS reablement if a professional thinks that one will benefit from it and that depends on one’s condition, one’s motivation, one’s drive and capacity, and the reality of one’s circumstances and environment. So not all care, after hospital discharge, IS actually free. It may be ordinary chargeable residential or nursing home care, or in fact, chargeable homecare.
  • Given that commissioned vacancies and booked reablement care often runs OUT in this world, and cannot be enforced, one needs to ask carefully, before discharge, whether what is being offered is:
  • A reablement package or bed? (FREE for 6 weeks – usually paid for by the council)
  • An intermediate care package or bed (FREE for 6 weeks – usually paid for by the NHS, when a person needs step-down care with a registered nurse available, before being able to go home, but doesn’t need to be in an acute hospital any longer. Or by the council if it’s a short burst of step UP care, without any registered nurse input other than the district nurse.)
  • A rehabilitation service (FREE until a patient has plateau’ed – always funded by the NHS)
  • An interim or ‘discharge to assess bed/package’ – likely paid for by the NHS after a positive CHC checklist or a clear case of complexity of care needs – until one is put through a DST exercise or reviewed with a new checklist and told that one is now needing to engage with the local authority… or by a council if negatively checklisted or not even thought conceivably qualifying, these days.
  • An empowerment bed – a euphemism favoured in some councils designed to disempower anyone’s knowing what they are actually getting, or why!

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The full Local Government Ombudsman report of West Sussex County Council’s actions can be found here