Decision : Upheld
Decision date : 22 May 2017
The Ombudsman's final decision:
Summary: There was fault and delay in the way the Council handled the transfer of Mrs X’s care and funding from the ILF which has led to it overcharging Mrs X. There was also poor complaint handling. The Council will apologise, backdate Mrs X’s financial assessment to July 2015, refund excess charges, review its procedures and make a payment of £300 in recognition of the time and trouble involved in bringing the complaint.
- The Representative whom I shall refer to as Mr X, complains on behalf of his wife, whom I shall call Mrs X. Mrs X has a brain injury and needs support with all aspects of daily living. Mr X manages Mrs X’s financial affairs as her appointee.
- Mr X complains that:
- The Council delayed in carrying out a financial review when his wife’s support from the Independent Living Fund (ILF) ceased;
- The cost of Mrs X’s wife’s care has increased without any corresponding increase in direct payments to secure provision;
- He wanted the Council to pay the two care agencies involved direct but the Council failed to do so;
- The Council failed to follow the complaint procedure in that there were long delays in responding and the Council failed to provide a written response;
- While the Council agreed to do a financial reassessment this is not a sufficient remedy for the injustice caused;
- It is unclear why the Council was deducting a client contribution from Mrs X towards her care costs and how it had calculated the amount deducted.
What I have investigated
- I have investigated the Council’s handling of Mrs X’s care package from April 2015.
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)
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
- If we are satisfied with a council’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 have considered information provided by the Council and Mr X including:
- Financial assessments of December 2016 and February 2017
- Complaint correspondence
- Care assessments and reviews
- The Care Act 2014 and associated regulations and statutory guidance.
What I found
- Prior to 30 June 2015 Mrs X’s care package was jointly funded by the Council and the ILF. The ILF provided funding for disabled people with high care needs to live independently in their own homes. The fund was administrated by the Department of Work and Pensions (DWP). Generally people receiving payments from the ILF also received care services from their council. The ILF payments were discretionary and in addition to any care services or payments made by councils.
- The ILF closed on 30 June 2015 and funding transferred to councils. From 1 July 2015 councils had to meet the eligible needs of all former ILF users.
- Mr X told me that the support arrangements for his wife in place in June 2015 were that she had a live in carer provided by a care agency. The live in carer had a 3 hour break each day and this break was covered by an outside (relief) carer provided by a second care agency. The live in carer was paid direct from a separate bank account managed on behalf of Mrs X which combined the ILF payment and a direct payment from the Council. The Council contracted directly with the care agency that provided the relief carer and paid that provider directly.
- All users of ILF were required to undergo a financial assessment. The assessment of client contributions under ILF was under a different policy to the financial assessment of contributions towards care made by councils. The ILF contribution was a flat charge based on benefits received. The ILF assessed Mrs X in March 2014 as needing to pay a client contribution of £99.05 per week.
- The Council’s charging policy at the time treated ILF client contributions as a disability related expense (DRE) because a person making a contribution to the ILF would not have been able to afford to pay any more money to the Council. Mrs X’s financial contribution to the Council before July 2015 was a nil charge.
- The Council says the transfer from the ILF would not have triggered an automatic financial reassessment in terms of assessed contribution as its standard practice was to assess finances every two to three years unless there was a request from the service user or representative.
- The Council told me that after the ILF closed it allocated all ILF users a worker for the sole purpose of creating a one off financial form to incorporate the former ILF monies. The Council told me it funded the support previously funded by the ILF minus the contribution Mrs X had previously made to the ILF. The Council told me it wrote to all ILF users explaining that ILF would cease at the point of review.
- The worker allocated to Mrs X’s case made a record on 15 May 2015 that she had spoken to Mr X and explained a direct payment would be set up to cover the net cost of the ILF payment of £421.33 with the client contribution of £99.05 remaining the same and that there would be a review coming up.
- In or about April 2015 Mr X said he raised concerns that the care agency had put up its charges but Mrs X’s direct payment had not increased by a corresponding amount. Mr X asked for a review.
- Mr X told me:
- The Council was very difficult to contact by telephone and failed to respond to his messages.
- He requested a financial review several times.
- He asked the Council to take over paying both care agencies direct rather than using direct payments. The Council told him he would look into this but then did not contact him further.
- He expressed concern Mrs X was paying a client contribution to the Council when she had never had to pay this before.
- Ask one provider agency to see if it could be commissioned for longer to allow the carer to get full breaks;
- Ask Finance when a financial assessment would take place
- Contact the care agency with a view to directly commissioning the provision to replace direct payments.
- It had been unaware the care agency had increased its fees and had it known this it would have reviewed the provision sooner. Mr X had contacted the Council on 29 March 2016 requesting a review / reassessment but because of backlogs this was not allocated to a worker until 27 June 2016. The Council said it had now reassessed and the position was ‘being resolved’.
- It had failed to directly commission the provision as promised but this would now happen.
- There had been unacceptable delay in its complaint handling.
- Direct commissioning of the care would commence on 20 February 2017;
- The financial assessment of December 2016 had a nil charge because the ILF contribution had been included within the assessment;
- The Council increased the length of visits by the relief carer in December 2016 so the live in carer got proper breaks.
Law and guidance
- The Care Act 2014 does not include any provision specifically relating to the ILF closure and transfer to local authorities. The Care Act statutory guidance [paragraphs 2.26-2.30] set out the framework within which transfers from ILF to Councils should be managed and suggests that to ensure the adult’s care and support continued uninterrupted during the transfer councils may wish to engage early to offer IFL users a needs assessment, make an eligibility determination (under a council’s own policy) and put a care and support plan in place.
- The Care Act Sections 14 and 17 and Chapter 8 of the statutory guidance sets out the framework for charging and financial assessments after the introduction of the Care Act in April 2015. Where a local authority arranges care and support to meet a person’s needs it may charge the adult but must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014. These provide that:
- After charging a person must be left with the minimum income guarantee (MIG) amount for adults and carers whose needs are being met otherwise than by the provision of accommodation in a care home.
- Where a Council takes disability related benefits into account it should make an assessment and allow the person to keep enough benefit to pay for necessary disability related expenditure to meet any needs which are not being met by the council.
- Certain capital or income should be disregarded including any payment received by the person from the ILF.
Scope of investigation
- I have exercised discretion to consider Mr X’s complaint from April 2015 when he first raised concerns with the Council. While this is more than twelve months before Mr X brought his complaint to the Ombudsman, I am satisfied it is reasonable to extend the scope of the investigation given the Council’s delay in responding to the complaint.
- Where a Council has decided to charge a person for the services it is arranging it must undertake a financial assessment and assess the income and capital of the person.
- I have been unable to find any legal basis which would allow a council to continue to apply the ILF client contribution rather than its own charging policy after 1 July 2015. The Council has not provided me with any authority that supports its position it could continue to deduct the ILF contribution from Mrs X. I invited the Council to backdate its financial assessment of February 2017 to July 2015, but it said the new contribution only applied from the week of 20 February 2017.
- The whole point of the transfer of ILF funding to Councils was to bring people under a single regime for assessment and charging. The Council should have done its own financial assessment in advance of, or as soon as possible after, the closure of the ILF in June 2015. Failure to do so was fault.
- The Council was wrong to continue to treat the ILF contribution as DRE in its financial assessment of December 2016. It makes no sense to include ILF contributions as DRE when the ILF is no longer involved.
- The Council’s February 2017 assessment has now correctly calculated Mrs X’s weekly charge under its own charging policy. The calculation shows Mrs X’s net income does not fall below the MIG.
- The previous (incorrect) calculation in December 2016 shows that Mrs X’s net income (after the Council had deducted the ILF contribution as DRE) was £131.84, below the MIG of £156.31. This indicates the Council has not only overcharged Mrs X from July 2015 until February 2017 but also allowed her income to fall £24.47 below the weekly legal minimum. This is fault.
- I am concerned that although I raised concerns about the Council’s continued use of the ILF contribution the Council did not itself recognise this was inappropriate. I am concerned that other former ILF users may be similarly affected by the Council’s approach.
- The Council told Mr X in April 2016 it would arrange to directly commission the care. In December 2016 it accepted it had failed to do so and said it would be in place by February 2017. Mr X tells me this is still not the case and he continues to receive invoices from the care agency direct. This is fault.
Delay in reviewing care package
- Mr X requested a review of Mrs X’s support package in April 2015. The Council did not complete this until June 2016. This delay is unacceptable and has meant Mrs X’s package was insufficient to cover the costs of the live in carer’s breaks.
- There was fault in the way the Council handled Mr X’s complaint, which the Council has already accepted and apologised for. I find that after the Council gave assurances actions would be prioritised there were further delays.
- Mr X points to the fact that not every person requiring care will have a family member who can advocate for them or pursue a complaint. Mr X is concerned the Council has not learnt from its previous errors and that remedies agreed by the Council in April 2016 are still not in place.
- I find that the delays have put Mr X to additional time and trouble over and above what should have been necessary.
- Following my draft decision, the Council reviewed its position and accepted it had been at fault in continuing to deduct ILF contributions after the ILF closed. The Council has agreed to the following actions to remedy the complaint:
- Within four weeks of my final decision the Council should provide an apology to Mr X for the faults I have identified.
- Within four weeks of my final decision the Council should ensure direct commissioning is now fully in place with both care agencies invoicing the Council directly.
- Within four weeks of my final decision the Council should provide a financial calculation for Mrs X backdated to 1 July 2015, applying its own charging policy and repay Mrs X the amount it has overcharged her by continuing to deduct the ILF contribution for a period when it was not relevant.
- Within four weeks of my final decision the Council should arrange to meet Mr X or provide him with a written statement (whichever is his preference) setting out how it intends to deal with any surplus in the direct payment account.
- Within four weeks of my final decision the Council should make a financial payment of £300 to Mr X in recognition of his time and trouble in bringing the complaint.
- Within six weeks of my final decision the Council should provide the Ombudsman with a list of former ILF users and confirm for each person:
- The financial contribution they paid to the ILF
- Whether a new financial assessment has been undertaken by the Council since the ILF closed and if so the new charge applied under the Council’s own policy
- Whether the Council has applied the former ILF contribution as DRE for any period after 1 July 2015 and if so whether the person has been overcharged by the Council as a result.
- share with its officers the lessons to be learned as a result of my investigation, and
- consider whether it needs to review its procedures to ensure delays in handling complaints and implementing agreed actions from complaints are prevented in future.
- There was fault and delay in the way the Council handled the transfer of Mrs X’s care and funding from the ILF and in its complaint handling. This has caused injustice. I intend to complete the investigation as I am satisfied the actions set out above are a suitable remedy.
- I have not investigated whether the ILF charged Mrs X the correct contribution before 1 July 2015. The ILF is not within the jurisdiction of the Local Government Ombudsman and any complaint about the contribution paid to the ILF would need to be directed to the ILF, DWP or Parliamentary Ombudsman.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman