Summary: Mr X complained about the way the Council completed his and his wife’s financial assessments. Mr X said this meant they paid too much towards the costs of their care. The Council was not at fault in the way it calculated Mr and Mrs X’s financial contributions to their care costs.

The complaint

1. Mr X complained the Council:
1. incorrectly calculated the financial contribution he must make towards his home care;
2. has either failed to carry out, or delayed in carrying out, financial assessments since 2017;
3. took joint benefits into account claimed by his wife without carrying out a financial assessment with her; and
4. does not take working people’s income into account when calculating financial contributions to care.

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What I have investigated

2. I have investigated complaints a) to c) in paragraph 1. I have explained why I will not look at complaint d) at the end of this decision statement.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I considered Mr X’s view of his complaint and considered the information he provided. I also spoke to Mrs X.
6. I spoke to the Council and made enquiries and considered the information it provided.
7. I considered the Care Act 2014, the Care and Support Statutory Guidance 2014 (the Guidance) and the Care and Support (Charging and Assessment of Resources) Regulations.
8. I wrote to Mr X and the Council with my draft decision and took the comments they made into account before I made my final decision.

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What I found

Legal background

9. The Care Act 2014 is the overarching legislation which sets out what councils can charge people who have an assessed need for care.
10. The Care and Support Statutory Guidance sets out in detail how councils must apply the requirements of the Care Act.
11. Councils have discretion to choose whether or not to charge for care which people receive at home. 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.
12. The overarching tenet of the Guidance is that councils should take reasonable steps to ensure that any charge is affordable for the person concerned. The council determines this by carrying out a financial assessment of what a person can afford to pay.
13. Councils can take most benefits into account in a financial assessment, including employment and support allowance (ESA), attendance allowance and the care component of disability living allowance (DLA). The law says some benefits and other income must not be taken into account. This includes income earned from employment and the mobility component of DLA.
14. Councils may exercise discretion to disregard some sources of income even if the law says they are allowed to take them into account when calculating a person’s contribution to their care.
15. Councils must ensure that a person’s income is not reduced below a specified level after charges have been deducted. This is called the minimum income guarantee (MIG). 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.
16. Annex C of the Guidance states “Only the income of the cared-for person can be taken into account in the financial assessment of what they can afford to pay for their care and support. Where this person receives income as one of a couple, the starting presumption is that the cared-for person has an equal share of the income.”

Council’s policy on charging for care

17. The Council’s policy on calculating the contribution to a person’s care included the following:
• if a person received disability living allowance (around £85 a week), it disregarded £28.30 of this as income; and
• all people, regardless of their age, had a MIG of £189.
18. In July 2018 the Council’s Adult Social Care and Public Health Committee recommended proposals to change the Council’s policy so that it would:
• include the full amount of a person’s disability living allowance as income; and
• reduce the MIG for people under pension age to £170.23 from April 2019 with a further reduction to £151.45 from November 2019.
19. These changes were designed to bring the Council’s policy more into line with national guidance.
20. The Council held an eight week public consultation on the proposals.
21. It sent letters about the consultation to all people who received adult social care from the Council. The Council also set up an online survey on its website and shared the link with relevant local groups and placed copies of the consultation in its libraries.
22. The consultation finished at the end of September 2018. 1,425 people responded. The majority of people who responded were not in favour of the changes.
23. On 8 October, the Adult Social Care and Public Health Committee considered the results of the consultation. It recommended the Council’s Policy Committee approve its recommendation that the Council introduce the new proposals.
24. Later in October 2018, the Adult Social Care and Public Health Committee brought its report and recommendation to the Council’s Policy Committee.
25. The report included details of the proposals, the reasons for introducing them, the consultation and its results, comments made by consultees, the number of people affected and the increased contributions some would have to pay.
26. The Policy Committee recommended the proposals were adopted by the Council.
27. In February 2019, the Policy Committee considered the matter further and gave its approval to implement the changes in two stages:
• from April 2019, a partial decrease in the MIG would be introduced so that people between the ages of 18 and pensionable age would have a MIG of £170.23; and
• from November 2019, people between 18 and pensionable age would have a MIG of £151.45.

Background

28. Mr X has a number of disabilities which means he needs home care. He receives single person’s ESA and the mobility and care components of DLA.
29. On 26 July 2016, Mr X emailed the Council and advised his partner, Mrs X, had moved in. Mr X said he did not want to complete a new financial assessment form and so the Council checked the DWP’s benefits system. This recorded Mr X was receiving single person’s ESA a week and Mrs X was receiving couple’s ESA. When the Council calculated Mr X’s and Mrs X’s finances it allocated the single ESA to Mr X and the total amount of the couple’s ESA to Mrs X. This meant the income for both of them fell below the MIG and they did not have to contribute to the costs of their care.
30. In April 2017, the Council apportioned Mr and Mrs X’s ESA on a 50:50 split of the total ESA amount. Again, their incomes fell below the MIG and so they did not have to contribute towards the costs of their care.
31. In April 2018, the Council’s policy on how it treated couples for financial assessments changed. This said “Only income and capital held in the service user’s name and half of any income or capital held in joint names will be taken into account”.
32. The Council says it notified all couples of the change but missed Mr X because he was not recorded on it system as part of a couple. Therefore, the Council continued to assign the total household ESA to Mr and Mrs X on a 50:50 split.
33. The Council contacted Mr X in November 2018 after noticing it had not recorded him and Mrs X as a couple. Mr X responded on 5 November 2018 stating he was still receiving single person’s ESA. The Council carried out a check with the DWP which showed Mrs X also had a couple’s claim in place for both herself and Mr X. The Council apportioned the couple’s joint benefit on a 50:50 split in line with its policy and the regulations.
34. In April 2019, the Council carried out new financial assessments for Mr and Mrs X. By this stage, some of the Council’s new policy changes had been brought in. These meant it had reduced the MIG to £170.23.
35. Once the Council had taken into account all of Mr X’s benefits and his disability related expenditure, his income was £49 above the MIG. This meant Mr X had to contribute £49 to the costs of his care. This was the first time the Council had assessed Mr X as able to contribute towards the cost of his care.
36. Mrs X’s income minus her disability related expenditure fell below the MIG. This meant Mrs X did not have to contribute to the costs of her care.
37. Mr X was unhappy the Council had begun to charge him for the costs of his care and he complained to the Council and subsequently the Ombudsman.

My findings

38. The Council followed the correct procedures when it made changes to its policy on charging for care. The consultation was not a binding referendum and the Council had no duty to act in line with the majority who opposed the changes. The relevant Council committee submitted a report which contained appropriate information to the Policy Committee for its consideration and subsequent approval. This was in line with the Council’s Constitution and the proposals are in line with the national Regulations. There was no fault in the Council’s actions.
39. The statutory guidance states “Only the income of the cared-for person can be taken into account in the financial assessment of what they can afford to pay for their care and support. Where this person receives income as one of a couple, the starting presumption is that the cared-for person has an equal share of the income.”
40. This means that the Council should have allocated Mr X’s single person’s ESA to him alone and split the couple’s ESA 50:50. However, prior to April 2019, the Council divided Mr and Mrs X’s total ESA equally between them. This meant the income for each of them fell below the MIG and neither had to contribute towards the costs of their care. Mr and Mrs X, therefore, benefitted from the way the Council split the total ESA between them.
41. From April 2019, the Council allocated the ESA received by Mr and Mrs X in line with the statutory guidance; namely, it allocated to Mr X the single ESA awarded in his name and 50% of the joint ESA award. It allocated to Mrs X 50% of the joint ESA the couple was awarded only. This meant that although Mrs X’s income remained below the MIG, Mr X’s went above the threshold and he had to contribute to the costs of his care. However, the Council acted in line with the statutory guidance and its own policy and was not at fault.

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Final decision

42. There was no fault in the Council’s actions. Therefore, I have completed my investigation.

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Parts of the complaint that I did not investigate

43. I have not investigated complaint d) in paragraph 1. This is because the law states that councils must not take work related earnings into account when calculating the amount a person can afford to contribute to their care. The Ombudsman does not have the authority to either change or interpret the law or statutory guidance. Only government and the courts can do this.

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Investigator's decision on behalf of the Ombudsman