Summary: the complainant says the Council has without warning charged him a contribution towards his care costs and has failed to fully consider his disability related expenses. The Council says it has applied the current law, guidance and policy and considered all relevant disability related expenses. The Ombudsman finds the Council acted without fault in deciding and reviewing the complainant’s contribution to his care costs.

The complaint

1. The complainant whom I shall refer to as Mr X complains that without any advance notice of any change in its charging policies the Council decided Mr X should contribute to the cost of the services he receives. Mr X says the Council failed to explain its decision, and it failed to consider his disability related expenses when deciding his contribution.
2. Mr X says the decision has significantly reduced his income because previously he did not pay any contribution to his care costs. Mr X wants the Council to reconsider his disability related expenses and reverse its decision. Mr X is represented by his mother whom I shall refer to as Mrs Y.

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The Ombudsman’s role and powers

3. 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)
4. If 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. In considering this complaint I have:
• Spoken to Mrs Y who represents Mr X and read the information presented with the complaint;
• Put enquiries to the Council and reviewed its responses;
• Researched the relevant law, guidance and policy;
• Shared my draft decision with Mrs Y and the Council and reflected on comments received.

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What I found

6. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
7. In February 2019 the Council adopted a new Adult Social Care Policy Statement. This explains its contributions policy in the section entitled ‘what SCC funds’. The changes in policy include replacing personalised disability related expenses allowances with a banded allocation based on Department for Work and Pensions benefits. The policy statement sets out guidelines on what costs the Council will fund or give allowances for.
8. The Council must carry out a financial assessment to decide a person’s ability to pay. The Council decides in the assessment whether the resident should pay all, part or none of the cost of their care and support. Having considered a person’s savings, capital and property the Council may offset these by considering personal allowances, household expenses and disability related expenditure.
9. The Statutory Guidance sets out what income including benefits the Council may discount when deciding how much someone should contribute.
10. The changes took effect on 1 April 2019. The new policy applies to new applications for support and on reassessing current residents’ support. To lessen the impact on clients the Council decided to limit any significant increases for three years. The policy includes a review and an appeal procedure (with a panel considering the appeal).
11. When introducing the new policy, the Council decided not to publicise it or issue standard letters and send them to all who receive support. The Council decided to introduce the change gradually by applying the changes to individuals already receiving support when the Council carries out their next review.
12. The Department for Work and Pensions manages and awards benefits such as Disability Living Allowance, Employment and Support Allowance, and Personal Independence Payments. The Council must apply any awards of these benefits to its calculations of income when deciding a resident’s liability for contributions to the costs of their services.
13. The Care and Support (Charging and Assessment of Resources) Regulations 2014 replaced the fairer charging allowances.
14. The National Association of Financial Assessment Officers has issued guidance on how to apply the Care Act assessments for costs. The Council uses that guidance for its assessments. Under that guidance where a disabled person is responsible for their living costs such as rent and mortgages these are considered as disability related expenses. Someone living at home with parents and who is not responsible for those living costs will not therefore have these costs considered in their assessment. Benefits which the Council does not include in its calculations cover the applicant’s proportion of living costs.

What happened

15. Mr X a disabled man lives at home with his parents who provide most of his personal care. This includes daily laundering, personal hygiene, and grooming. Mr X attends a day centre for five days of the week for six hours of the day.
16. Following the Department for Work and Pensions increase in Mr X’s benefits the Council assessed Mr X again in 2014. The Council assessed Mr X as not liable for any contribution towards the costs of his care under the previous Fairer Charging protocols. The Care Act introduced new procedures from 2015.
17. In February 2019 the Council adopted its new Adult Social Care Policy which included changes to its charging policy effective from 1 April 2019. Therefore, on 18 April 2019 the Council wrote to Mr X saying that it had re-assessed his contribution towards his care services. The letter said Mr X must now contribute £39.65 a week towards his care services. This represented a significant increase for Mr X who previously paid no contributions.
18. Mr X says the letter does not explain the changes in charging policy or the impact of the Care Act 2014. To Mr X and Mrs Y this came ‘out of the blue’.
19. Mrs Y put in a complaint to the Council on Mr X’s behalf. On 30 April 2019 the Council replied to the complaint. The letter says that changes in benefits such as replacing Disability Living Allowance with Personal Independence Payments and Income Support had resulted in Mr X receiving increases in his income of £60.40. Given the increased income the Council must review its financial assessment and decide if Mr X should now contribute to his care costs.
20. This letter explains that with changes arising from the DWP moving Mr X from Income Support to Employment and Support Allowance, and Disability Living Allowances to Personal Independence Payments Mr X’s income had increased. The letter also shows the Council has disregarded from its calculations the mobility portion of the Personal Independence Payment. The letter says Mr X’s income increased by £60.40 per week. The Personal Independence Mobility component which the Council does not consider in its calculations also increased by £40.20. Therefore, the Council placed Mr X in the highest banding for disability related expenses allowing him a weekly allowance of £25.00.
21. The Council sent an appeal form for completion so Mr X could claim some disability related expenses to be offset against the increase. The letter explained the family did not have to go through the complaints procedure but could register an appeal by setting out the disability related expenditure incurred on the form.
22. Mr X provided details of his disability related expenditure and asked the Council to review its assessment. On 10 May 2019 the Council issued its review decision. The Council decided Mr X’s contribution should be lowered from £39.65 to £27.16 a week.
23. On 22 May 2019 Mr X appealed against the stage 1 decision. Mr X wanted to continue with a nil contribution and Mrs Y provided a breakdown of the money she takes from Mr X each week to cover his living costs and expenses. Mrs Y set out in the appeal Mr X’s history. Mrs Y said that due to mistakes by the NHS at Mr X’s birth medical staff told the family he would never have to pay for his care.
24. The Council wrote to Mr X on 3 June 2019 to explain the changes he would see in the payments into his direct payment account through which the Council funds his care. The letter explained the Council would continue paying its funding into Mr X’s direct payments account, but the Council would now deduct from that payment Mr X’s contribution. Mr X would have to pay into the direct payments account his contribution to ensure he had enough funds to pay for his care needs.
25. In the appeal put before the Council’s Appeal Panel Mr X claimed for clothing and footwear; specialist equipment such as his powered bed, bedding and laundry.
26. Mr X says his parents support him through providing him with board and lodgings and he gets no payments for those expenses incurred on his behalf.
27. In response to my enquiries the Council explains that because Mr X lives with his parents he is not responsible for property related costs. Therefore, the Council did not include any other than the general disregard used when calculating Mr X’s contribution. Within the ‘general disregard’ an allowance is made for board and lodgings. That is why some benefits are disregarded in the calculation.
28. The Council says it has not referred Mr X or his family to any advice agencies who may be able to help them understand the changes. The Council invited the family to put forward details of any other disability related expenses they had so the Council could review its decision on what Mr X should contribute.

Analysis – was there fault leading to injustice?

29. My role is to decide if the Council has correctly applied current law and policy and if it has not, recommend a remedy to place the complainant in the position they would have been but for that fault. My role is not to say whether Mr X should contribute to his costs or how much he should contribute.
30. The family believed they would not incur expenses arising from Mr X’s disability and care needs. The Council is not responsible for promises or advice given by the National Health Service or others. In 2014 following a financial assessment the Council decided Mr X did not have to contribute to his care costs. That decision rested on Mr X’s income and expenditure in 2014. Through changes in income, changes in benefits and changes resulting from implementing the Care Act 2014 Mr X’s circumstances had changed by 2019. The Council must consider those changed circumstances including increases in benefits and assess Mr X’s finances.
31. The decision to charge Mr X a contribution came as a shock to Mr X and his family. However, the Council has followed the correct procedure in assessing Mr X’s finances and telling him what his contribution should be and how he could challenge that decision. It may have helped the family if the Council had referred them to agencies who might be able to offer help in explaining the charges. Mrs Y made a formal complaint. The Council did not uphold the complaint. It believed officers had followed the correct procedure and the Council had a review procedure for reviewing the decision on how much Mr X should contribute.
32. Following an appeal to the Council’s appeal panel the panel considered Mrs Y’s claim that Mr X incurred about £82 additional disability related expenditure. The panel did not agree and decided the Council had correctly calculated the reviewed contribution of £27.16 a week.
33. This is a significant change for Mr X who has not previously contributed to his care costs. In commenting on my draft decision Mrs Y says Mr X cannot live on the reduced income. It is not for me to decide what contribution Mr X should make, rather it is to consider if the Council properly considered his application. The Council has followed the correct procedure, applied the charging policy and considered the review and appeal. I find the Council acted without fault in how it considered and decided on the final contribution.

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Final decision

34. In completion of my investigation I find the Council acted without fault in deciding Mr X should contribute to his care charges.

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Investigator's decision on behalf of the Ombudsman