The Ombudsman's final decision
Summary: The Council has provided evidence that Mrs X signed on behalf of her son Mr X to agree he would pay for the services he received.
The complaint
Mrs X (as I shall call the complainant) complains that the Council has allowed her son Mr X to accrue significant debt for which it says she has some responsibility.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
I considered the information provided by Mrs X and by the Council. We spoke to Mrs X. Both Mrs X and the Council had an opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.
What I found
Relevant law and guidance A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in settings other than care homes. A council has discretion to charge for non-residential care following a person’s needs assessment. Where it decides to charge a council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17) Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the person will use their personal budget will be in the care and support plan.
Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs.
The Council delegates its mental health social care duties under the CareAct 2014 to Essex Partnership University Trust (EPUT) to deliver under a section 75 agreement.
What happened Mr X has some mental health and social care needs which are met by EPUT. The Council has no involvement with his care plan except for commissioning the care identified by EPUT as appropriate to meet Mr X’s needs.
Between January 2018 and July 2021, the Council says Mr X was assessed as needing 24 domiciliary hours a week to assist with activities of daily living. This included 3 hours a week to support Mr X with managing his finances and letters, and 21 hours per week (3 hours per day) to support him with his personal care, managing his home environment and managing his nutrition.
On 13 June 2018 the Council completed a financial assessment of Mr X in which he was deemed able to pay £96.95 contribution towards the cost of his care. Mrs X was present at the assessment. Mrs X signed an undertaking on Mr X’s behalf to pay the set charges regularly and promptly, and that she understood the Council’s right to recover any moneys not duly paid. Mrs X says she signed this because she understood from Mr X’s care co-ordinator it was for Mr X’s tenancy.
The Council agreed to Direct Payments for Mr X and wrote to him (care of Mrs X) on 15 August confirming the first payment had been made into his nominated account. The letter went on, “If a weekly client contribution was revealed as an outcome of your financial assessment, you will need to arrange for payment of that contribution to be made into the nominated account.”
The Council says Mr X’s care package was initially for £315 a week, increasing to £345 a week.
Mr X did not pay his assessed contribution. The Council says, “He cancelled visits which consequently resulted in reduced invoice values for less care than specified in his support plan. A surplus of approximately £80 per week was generated in his [managed] account, despite not paying his assessed charge.” He chose to rely instead on his parents for support. Mrs X says he cancelled the care because of dissatisfaction with the care provider. Mr X then employed a more expensive care provider from May 2019 onwards.
The Council says, “The cost of the care averaged £390 per week which was above the direct payment award. As (Mr X) continued not to pay his assessed contribution, the surplus he had accrued in his [managed] account started to diminish. This resulted in (Mr X’s) account being in arrears in May 2021 when the account was highlighted to Essex County Council. Upon investigation, it was established the reason for the arrears was that (Mr X) had not paid his assessed contribution.”
The Council sent Mr X a statement of his assessed contribution every year, care of Mrs X. Mrs X says she has never seen them but they are addressed to Mr X care of Mrs X at Mrs X’s address.
On 5 July the account management company sent Mr X an invoice for £1162. Mrs X complained to the Council on his behalf.
Mr X moved into supported living in September 2021 and the Council now commissions his service directly.
The Council’s Direct Payments Team then wrote to Mrs X in December 2021 explaining Mr X’s debt now stood at £16, 168: the total unpaid weekly contributions from May 2018 to September 2021. The Council says it was paying for a larger number of care hours than Mr X was using for some time, which masked the effect of his failure to contribute.
The Council wrote to Mrs X on 9 December. It said Mr X had not made any payments of the assessed contribution towards the cost of his care. It said it would not therefore waive the debt but would be wiling to negotiate a payment plan with Mr X.
Mrs X telephoned the Council on 15 December about its letter. She said she did not know Mr X was supposed to pay any charges. The Council replied to her on 20 January. It said it had investigated further and there was evidence it had written to her regularly with details of Mr X’s assessed charge, and she had signed to say she was aware of the charges.
Mrs X complained to the Ombudsman. She said the social worker had known of her son’s gambling addiction but he had been allowed to run himself into debt. She says the supported living placement where Mr X lives has now helped him engage with Gamblers Anonymous.
The Council acknowledges there was an oversight by Mr X’s care coordinator who did not scrutinise the allocated spend within the managed account at review and confirm that Mr X was paying the assessed weekly charge. The Council says it does intend to recover the outstanding debt but is willing to agree a repayment plan which is acceptable to both parties.
Analysis The evidence provided by the Council shows that Mrs X signed on behalf of Mr X to say they understood he was due to pay his charges regularly and promptly. He did not do so. Mrs X says she does not believe it was presented to her properly, but she clearly signed to accept responsibility. That was not fault on the part of the Council.
The Council send an annual statement of assessed contribution to Mr X, care of Mrs X at her address. That was an appropriate notification.
Mr X’s care coordinator should have considered Mr X’s account more closely and confirmed he was paying the assessed charge: however, it was Mr X’s decision not to use the allocated hours properly and to build up a reserve in this account which masked his failure to make his contribution – when he then employed a more expensive care provider his debt grew exponentially.
The Council has offered to agree a repayment plan for the debt owed by Mr X, which in my view is an appropriate way forward.
Final decision
I have completed this investigation on the basis it was not the fault of the Council Mr X accrued the debt.
Investigator's decision on behalf of the Ombudsman