Nottinghamshire County Council (18 016 318)

Category : Adult care services > Assessment and care plan

Decision : Upheld

Decision date : 27 Sep 2019

The Ombudsman's final decision:

Summary: Mr X complains about the sudden increase in Mrs Y’s contribution to care from zero to £198 per week and about the way the Council dealt with his complaints about this. He says it has caused much stress, anxiety and financial hardship. The Ombudsman finds the Council was not at fault in the change to its charging policy but was at fault in implementing it without adequate notice. He also finds the Council was at fault in the way it dealt with Mr X’s complaint. The Council has agreed to apologise, reimburse six weeks of contribution in lieu of notice, pay Mr X and Mrs Y £250 each and take action to prevent similar faults in future.

The complaint

  1. The complainant, whom I shall refer to as Mr X, complains on behalf of his wife, Mrs Y, that the Council:
    • Unexpectedly, and without explanation, increased the charge for Mrs Y’s care from zero to £94 per week, and then, over around seven months, to £198.13 per week.
    • Failed to complete a review of Mrs Y’s care, and
    • Dealt poorly with their complaint.
  2. Mr X says this has caused them much stress and anxiety, and financial hardship.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. 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)

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How I considered this complaint

  1. I considered information from the Complainant and from the Council.
  2. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

  1. Councils have discretion to choose whether to charge for non-residential services. Where a council decides to charge it must do so in line with the Care and Support (Charging and Assessment of Resources) Regulations and have regard to the Care and Support Statutory Guidance (CSSG). 
  2. Where the council has decided to charge, it must carry out a financial assessment of what a person can afford to pay. It has no power to assess couples according to their joint resources: each person must be treated individually. The council must not charge more than the cost it incurs in meeting the assessed needs of the individual. It must regularly reassess a person’s ability to meet the cost of their care to take account of any changes in their resources.  
  3. Councils must ensure that they do not reduce a person’s income below a specified level (the minimum income guarantee) after charges have been deducted. The amounts are set out in the Care and Support (Charging and Assessment of Resources) Regulations. However, this is only a minimum and councils have discretion to set a higher level if they wish.
  4. If a council takes a disability benefit into account when calculating how much a person should contribute towards the cost of their care, they must also assess disability-related expenditure (DRE) in the financial assessment.  This is because the Care Act statutory guidance says councils must leave individuals with enough money to pay for necessary disability related expenditure to meet any needs not being met by the council. DRE are costs that arise from a disability or long-term health condition. Councils should always consider individual circumstances. Some councils disregard set amounts for DRE, but if the person’s costs are higher than the set amount a full assessment of their costs should be made.

Reviews

  1. Section 27 of the Care Act 2014 gives an expectation that local authorities should conduct a review of a care and support plan at least every 12 months. The authority should consider a light touch review six to eight weeks after agreement and signing off the plan and personal budget. It should carry out the review as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Local authorities must conduct a review if the adult or a person acting on the adult’s behalf asks for one.

What happened

  1. For many years, Mrs Y lived with health conditions and disabilities which caused her significant difficulty with daily living. She received a personal budget via direct payment from the Council to employ support for ten hours daily. Mr X provided her support for the rest of the time.
  2. In April 2017, the Council assessed the contribution Mrs Y had to pay towards her support as zero. Mrs Y had always previously been assessed as having to make no contribution.
  3. On 28 March 2018, the Council’s policy committee considered a change to the charging policy and recommended it be approved. This followed a period of consultation from 6 November to 5 December 2017, and an extension on some elements to 22 January. The Council advises that 1,425 people responded of which 231 responded during the extended consultation. The changes included removing the option to assess a couple if this would be financially beneficial to the person. This meant the Council would only calculate a person’s charge based on their own their own finances including 50% of any joint assets or liabilities.
  4. The following day, the Council wrote to advise people of the changes. It said the change to the way it charged would apply from April and said Mrs Y’s contribution would now be £94.72 per week, due on 9 April. This meant it would reduce her direct payment by this amount. Council records note around 200 people were adversely affected by this change and were assessed to make increased contributions.
  5. Mrs Y did not see this advice until she returned from a break on 14 April.
  6. On 19 April, Mr X complained to the financial services team manager. He copied his complaint to the Chief Executive, the Corporate Director, the Head of service, the Head of complaints and the cabinet Member responsible for adult social care. He said there was no notice and no explanation of how Mrs Y should meet her costs as an employer with this significant reduction in the money she had available. He demanded a “full and detailed” response from each of those listed explaining “how everything has been forecast, calculated and assessed”. He also asked for:
    • A detailed explanation of how and when the change was made and how it related to the previous situation.
    • The legal standing of the decision.
    • Which information it required as they did not recall a financial assessment.
    • What allowances could be made.
    • Why there had been no consultation, information or explanation about the change before it was implemented.
    • A meeting with Mrs Y’s current, or newly allocated, social worker.
    • A meeting with the most senior officer responsible.
  7. The Council telephoned Mr X and Mrs Y on 24 April but they were not available. The following day it arranged a home visit. It also wrote to Mr X to advise that it had logged a formal complaint and passed it to the financial services team to investigate and review the financial assessment. It said the writer would be his central point of contact for his complaint.
  8. The Council visited Mrs Y and Mr X on 2 May and explained the changes. The officers gathered information and advised about DRE. They suggested Mr X provide further information about this. The officers updated the assessment based on the information given and increased the contribution to £118.18 per week. The officers asked whether the Council would waive Mrs Y’s contribution for up to six months and whether it could increase her DRE allowance. Mr X asked for more information and the Council responded promptly with more details.
  9. On 29 May, Mr X contacted the Council as he had not heard anything more and wanted to query the direct payment amount which had reduced significantly. This was because Mrs Y’s contribution had been deducted before payment which is the usual procedure.
  10. On 22 June, the Council wrote to Mrs Y to advise the outcome of the review completed at the visit. It had now assessed her contribution as £132.28 per week.
  11. On 27 June, Mr X wrote saying he and Mrs Y were “exasperated”. He said it seemed the more questions they asked, the more the Council charged Mrs Y. He said this would cause Mrs Y considerable financial hardship and asked for answers to the questions he had asked. These were about:
    • the algorithm it had used to calculate how much money it needed to provide the ten hours of care.
    • how much income she could keep, and the rationale behind this.
    • what had changed since the Care Act implementation.
    • how to appeal the decision.
    • what might happen if circumstances changed.
  12. On 6 July, the Council responded. It explained:
    • it had based the financial assessment on Mrs Y’s income not Mr X’s.
    • if circumstances changed, it would update the financial assessment and reassess Mrs Y’s needs if necessary.
    • the Council decided not to implement the change at the time the Care Act was implemented and this was why Mrs Y had continued with no contribution.
    • the initial letter was based on out of date information so the calculation changed once they had up to date information.
    • there had been a consultation in November 2017.
    • if Mr X wanted to appeal the decision he should contact the complaints team.
    • it had looked at the household income and decided the contribution should not cause hardship. It asked for details of Mr Y’s earnings for the last two years so it could reconsider.
    • it had disregarded the full council tax amount instead of 50% when it calculated the contribution of £118.18. Changing this to 50% caused the increase to £132.28 per week. The Council agreed to postpone this increase until 23 July 2018.
  13. On 19 July 2018, a community care officer from the Council reviewed Mrs Y’s care and support. The review noted changes and how her needs were being met. For example, it said her speech had deteriorated but that her carers had been with her a long time and could understand her well. The reviewer noted that if Mr X’s working hours change in the future, “there would be an expectation that he would provide a little bit more support”. It said Mrs Y might only need support for six hours a day, five days a week. This “little bit more support” would mean 20 more hours a week provided by Mr X.
  14. On 1 November, the Council wrote to advise of a further change to the way it calculated contributions to care. This reduced the amount people could keep for daily living costs and increased the amount of benefits it could include in the calculation. Mrs Y’s contribution increased to £198.13 per week from 12 November.
  15. On 10 November, the Council agreed to delay phase the implementation of these most recent changes to give people time to adjust. The policy was to be implemented in April 2019 and the changes introduced in two stages in April 2019 and November 2019. It agreed to ensure people had at least six weeks’ notice of the new contribution.
  16. On 16 November, Mr X wrote to the Council again. He said he had not received a full response to his previous complaint and asked that the six people he had addressed it to, respond. He also asked for a copy of the financial assessment before April 2018 and copy of the most recent “social worker report”. He also asked for information about the care assessment completed in July. He said they had not yet received anything about this. He asked for a comprehensive review of Mrs Y’s needs by a social worker as her condition had “deteriorated dramatically” since the Council had awarded her ten hours a day.
  17. On 17 December, the Council wrote to advise that the changes would not be implemented until April and November 2019. Mrs Y’s contribution reverted to £132.28 and the Council said she would be reimbursed.
  18. On 19 December, the team manager for the adult care financial services wrote to Mr X. She apologised that she hadn’t responded previously but had thought the visit had addressed this. She explained the changes to the Council policy on charging and the reason why Mrs Y had not paid a contribution previously. She also set out detailed calculations of Mrs Y’s contribution from April 2018 and from April 2019. She enclosed the financial assessment from April 2017.
  19. Mr X remained unhappy with this response and said the Council had not addressed the impact on them personally. He said it had not addressed his questions about hardship, how this is calculated, and how they could afford to find £10,000 per year like this.
  20. Officers from the Council met with Mr X to discuss his complaint on 23 January 2019; he handed officers a letter setting out his complaint.
  21. On 30 January, the Council wrote to Mrs Y and advised it had found no change in the support needed which would remain at 50 hours per week. Mr X would also get three hours per month respite.
  22. On 20 February, the Service Director wrote to Mr X about his complaint addressing each of his points.

Was there fault which caused injustice?

  1. The Council was at fault for giving no notice of a significant change to Mrs Y’s contribution in April 2018. The Council’s was still considering its decision to change the policy less than two weeks before the first contribution was due. It should have been clear it could not implement this in time. It later decided that six weeks was a suitable notice period, but it did not allow this for the change applied in April 2018. I have concluded it should have allowed at least six weeks’ notice and therefore should reimburse Mrs Y with the first six weeks contribution.
  2. Having had such unwelcome news in April, the Council then advised Mrs Y of another significant increase in November, without notice. This was fault but fortunately, on this occasion, it swiftly reconsidered, deferred the increase and reimbursed Mrs Y. However, she had already been caused significant and avoidable stress and anxiety by the letter advising this was to happen without notice.
  3. The impact of these changes were significant in Mrs Y’s case, but the Council was not at fault in the changes it made, only in the lack of notice. It was also at fault in firstly calculating Mrs Y’s contribution based on out of date information, and secondly in allowing the full amount of council tax, not 50%. This added more significant and avoidable uncertainty, stress and anxiety for Mrs Y and Mr X.
  4. The Council also considered whether the revised contribution would cause the household financial hardship and it decided that it would not. This is a discretionary decision. Although I could not say the Council was at fault here, it should consider whether it is appropriate to consider the household finances when the contribution is calculated on individual finances. It should also provide Mr X with information about how it considers hardship.
  5. The Council did review Mrs Y’s support in July 2018. I saw no evidence this was delayed and found the review considered the necessary information. However, I found the comment about reducing Mrs Y’s support was unhelpful and somewhat threatening. This is not how support is decided and I found the Council at fault in this. The Council was also at fault for not sending a copy of the review document; it must do this as soon as it is completed.
  6. Mr X’s complaint was about the financial assessment. Although he asked to meet the social worker in his first complaint, the Council had no reason to consider this would be helpful. He did not say Mrs Y’s needs had changed or that the support was not meeting her needs. The Council was justified in believing a meeting with officers from the finance team and a fresh assessment was the appropriate response to his complaint.
  7. Mr X copied his complaint to the Chief Executive, the Corporate Director, the Head of service, the Head of complaints and the cabinet Member responsible for adult social care. Although he was understandably distressed by the circumstances, I do not consider it was necessary for all these people to be involved in dealing with his complaint. They were aware of the complaint and could follow up internally to ensure it had been dealt with. They did not need to each respond to Mr X and the Council had provided a single point of contact which is good practice. The Council did, for the most part, provide the relevant information but Mr X was expecting a response it could not give.
  8. However, the Council should have provided a comprehensive written response sooner than it did. Although it had responded in writing to some degree in July and December 2018, it did not address all the issues and Mr X remained dissatisfied. The Service Director’s response in February 2019 was the first comprehensive written response which clearly dealt with each point he had raised. The Council was therefore, to some degree, at fault in the way it dealt with Mr X’s complaint and this added to the uncertainty, stress and anxiety.

Agreed action

  1. To remedy the injustice identified above, I recommended the Council:
    • Apologise in writing to Mrs Y and Mr X, noting the fault identified above and detailing the actions it has taken, or will take, to prevent similar problems in future.
    • Reimburse Mrs Y with the first six weeks’ contributions from April 2018.
    • Pay Mr X and Mrs Y £250 each for the uncertainty, distress and anxiety it caused.
    • Ensure it gives enough notice of changes to contributions in future.
    • Explain to Mr X and Mrs Y how it decides hardship.
    • Consider whether it should have included Mr X’s finances when deciding hardship given Mrs Y is the person receiving services and the contribution is based only on her finances.
    • Complete these actions within two months of the final decision and submit evidence of this to the Ombudsman. Suitable evidence might include:
      1. A copy of the letter of apology which will include information around how it decides hardship, the action it will take, and the reconsideration of hardship for Mrs Y.
      2. Confirmation of the reimbursement and payments.
  2. The Council has agreed to complete these actions.

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Final decision

  1. I have completed my investigation and upheld Mr X’s complaint that the Council:
    • Unexpectedly, and without explanation, increased the charge for Mrs Y’s care from zero to £94 per week, and then to £198.13 per week within six months.
    • Dealt poorly with their complaint.
  2. I have not upheld Mr X’s complaint that the Council failed to complete a review of Mrs Y’s care.

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Investigator's decision on behalf of the Ombudsman

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