Summary: Ms X complains about the Council’s decision to stop funding her son, Mr Y’s fifth day of day care since May 2006. Ms X says Mr Y has incorrectly accrued debt in unpaid care contributions because of the Council’s actions. We are satisfied there was no fault in the Council’s actions from 2017. The issues that Ms X has complained from this date about have not caused her or Mr Y injustice for which we would recommend a remedy.

The complaint

1. The complainant, who I have called Ms X, complains the Council should not have stopped funding her son, Mr Y’s fifth day of day care in May 2006. She says the small contribution the Council makes towards the fifth day has created a shortfall which has led to Mr Y being in considerable debt. Ms X is also concerned it took the Council over a year to respond to her complaints about this. She is worried the Council has still not included the fifth day as an assessed need in Mr Y’s latest care and support plan. Ms X wants the Council to agree to cover the cost of the fifth day and to write off the existing debt Mr Y has accrued.

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What I have investigated

2. I have limited my investigation to events dating back to the beginning of 2017, as I am not satisfied there will be sufficient evidence for me to complete a robust investigation into matters from May 2006. I am also not persuaded that Ms X could not have brought her complaints about the Council to us sooner.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended)

6. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. If the person has died or cannot authorise someone to act, we may investigate a complaint from a personal representative or someone we consider suitable to represent the person affected. (section 26A or 34C, Local Government Act 1974)
7. 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

8. I have spoken to Ms X and considered the information she has provided in support of her complaint.
9. I have considered the information the Council has provided in response to my enquiries.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation

Care and support statutory guidance

11. The Guidance document sets out how councils meet the terms of the Care Act 2014. Section 14 says councils can charge for care and support, except where they are required to provide it free of charge.
12. The Guidance says a person should not have to pay for care and support out of their capital if they have less than £14,250. It also says councils should disregard any Disability Living Allowance mobility component a person receives when assessing their income.
13. Certain items of expenditure can be deducted from a person’s income before the council decides whether a person can afford to contribute to their social care costs called Disability Related Expenditure (DRE). Councils must take DRE into account when assessing a person’s finances. The financial assessment should set out exactly what the Council considers to be DRE.
14. If a council takes a disability benefit into account, they must also assess DRE in a financial assessment. This is to meet any disability-related needs not being met by the council.
15. The Guidance says councils should not be inflexible and should always consider individual circumstances. Councils should consider everything a person has to buy or pay for because of their disability. Councils should not adopt a blanket policy.
16. The Statutory Guidance states that “what is disability-related expenditure should not be limited to what is necessary for care and support”.
17. After paying the assessed charge, a person’s weekly income should not reduce below a minimum income level, called the Minimum Income Guarantee (MIG). Councils must consider how to protect a person’s weekly income using the MIG. Guidance states the purpose of the MIG is to promote independence and social inclusion and ensure a person has have sufficient funds to meet basic needs.
18. Applicants can use the Financial Assessment Appeals process if they disagree with the outcome of a financial assessment. There are two appeal stages to the process. Stage one appeals are dealt with by a member of the team not involved in the assessment. If the applicant remains unhappy with the outcome of the stage one appeal, they can go to Stage two. This is dealt with by a senior team member. Applicants can then complain to the Ombudsman if they remain unhappy with the outcome of their appeals and consider there was fault in the way the Council carried out the financial assessment.

What happened

19. Mr Y is an adult with learning disabilities, who lives independently but receives support from his mother, Ms X. Ms X is Mr Y’s appointee and is responsible for helping him with managing his finances. Mr Y has been receiving help from the Council through care and support plans and direct payments for several years.
20. Mr Y has attended day care services with various providers. The Council funded for Mr Y to attend day care with one provide four days a week from 2006. Since July 2007, Mr Y has received direct payments from the Council to fund his day care placement for four days a week and to pay for his personal care needs. The Council has also made a financial contribution towards Mr Y’s attendance with another day care provider for the fifth day since July 2007.
21. In July 2016, the Council completed a review of Mr Y’s care and support plan, together with a financial assessment to review the level of contribution Mr Y needed to make towards his care. Ms X and an independent advocate participated in the Council’s review on Mr Y’s behalf. The Council confirmed Mr Y’s attendance at day care for four days a week remained an assessed need that it would continue to fund through a direct payment. Mr Y’s advocate agreed to the Council making a reduction in the number of support hours Mr Y received per week. The Council highlighted a shortfall in Mr Y’s care costs contribution since at least 2011, which had continued to accrue as an outstanding debt.
22. In August 2017, Ms X made a complaint to the Council about the 2016 review. She raised concerns the Council should have been funding Mr Y’s attendance at day care for five days a week rather than four. Ms X wanted the Council to agree that the debt Mr Y had accrued be written off as it represented the funding the Council should have been providing for Mr Y’s fifth day of day care since 2006. As an alternative, Ms X wanted the Council to include the fifth day of day care as a DRE.
23. The Council responded to Ms X at the end of September 2017. It explained it would undertake a further review of Mr Y’s care and support plan to consider the specific issue of a fifth day of day care provision. The Council also confirmed it had received Ms X’s appeal against the outcome of the financial assessment, which would be considered separately.
24. Ms X made a further complaint to the Council about the fifth day of day care provision in January 2018. The Council responded on 14 September 2018. It apologised for the delay in responding to Ms X’s complaint. The Council explained it had not retained records to explain why it had decided to partly fund Mr Y’s fifth day of day care. It acknowledged the confusion this had caused and agreed to include the fifth day as DRE in Mr Y’s financial assessment. As Ms X had first raised this issue with it in August 2017, the Council agreed to backdate the DRE to then. The amount of debt Mr Y had accrued through making insufficient care contribution payments was adjusted to take account of this additional DRE.
25. Ms X maintained that Mr Y would not be in debt if the Council had agreed to fund his fifth day of day care since 2006. The Council explained it could not backdate the DRE to 2006 but offered to review Mr Y’s care and support plan to specifically consider whether the fifth day of day care provision should be included as an assessed need. Since 2018, Ms X has declined the Council’s invitations to conduct a review of Mr Y’s care and support plan. Ms Y has instead wanted the Council to agree to add Mr Y’s fifth day of day care to his care and support plan without further assessment and to waive any debt he has accrued.
26. Ms X has also complained that Mr Y is suffering financial hardship due to the Council’s financial assessment of contributions Mr Y should pay towards his care costs. The Council completed a financial assessment and hardship review following a visit to Ms X to discuss Mr Y’s income and expenditure in late November 2018. On 11 December 2018, the Council wrote to Ms X to confirm it had undertaken a financial assessment review back to 8 August 2016 to include a higher allowance of DRE following its response to Ms X’s complaint. The Council explained there was still a shortfall in the weekly contribution amounts that had been paid for Mr Y and that it would need to make arrangements with Ms X to recover the debt that had accrued on Mr Y’s account.
27. Ms X asked the Council for more time to discuss the arrears Mr Y owed. She also queried the information the Council held about Mr Y’s capital. At the end of January 2019, Ms X then asked the Council to cancel the arrears Mr Y owed in recognition of the continued difficulties she had experienced in getting the Council to agree to fund Mr Y’s fifth day of day care. The Council has since sought to complete a further annual review of Mr Y’s care contributions at the end of July 2020 and invited Ms X to provide up to date information about Mr Y’s income and expenditure to assist with its assessment. To date the Council does not appear to have pursued the arrears Mr Y owes, which currently appear to stand at approximately £2,000. The Council has however warned Ms X that continued non-payment of the accrued debt may result in Mr Y’s direct payments being suspended or ceased.

Analysis

28. There was clearly some confusion around how the Council came to making a small contribution to the weekly costs of Mr Y’s fifth day of day care. In recognition of this, the Council agreed to include the full cost of Mr Y’s fifth day of day care as DRE. This in turn reduced the amount of contribution Mr Y had to make towards his weekly care costs from August 2017. The lack of clear records to show what happened in 2006 is unfortunate. However, given the significant passage of time and lack of records, I do not criticise the Council’s response and approach to Ms X’s complaint in 2017.
29. The Council has also offered to reassess Mr Y’s care and support needs to see if he requires the fifth day of day care. The Council is entitled to ask to undertake a reassessment where the person receiving support (or their representative) has indicated the existing care and support plan does not meet their needs. I do not find the Council at fault for its approach.
30. Ms X has complained the Council has failed to include Mr Y’s fifth day of day care as DRE. The evidence shows the Council has included the full costs of this as DRE and has adjusted Mr Y’s care contributions from August 2016 onwards. As such there is no evidence of fault in the Council’s handling nor does it indicate the debt Mr Y has accrued is as a direct result of the fifth day of day care provision. The Council’s correspondence with Ms X about annual financial assessment reviews has included consideration the Minimum Income Guarantee (MIG) level set by government each year. The Council has ensured Mr Y’s income has not fallen below the MIG as a result of the care contribution it has calculated he should make.
31. Although the Council has notified Ms X as Mr Y’s appointee of the debt accrued by not paying the full amount of weekly care cost contributions for several years, it has not pursued formal action to recover any of the money owed. While Ms X may have found this distressing, the Council appears to have acted without fault in explaining to her the eventual consequences of non-payment.

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Final decision

32. I have completed my investigation and not uphold Ms X’s complaint. I am satisfied the actions from 2017 that Ms X has complained about have not caused her or Mr Y injustice for which we would recommend a remedy.

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Parts of the complaint that I did not investigate

33. Ms X’s claims Mr Y suffered injustice because of the Council’s actions in 2006. I have not exercised discretion to examine matters from that date and as such I cannot establish if there has been maladministration in the Council’s handling from 2006 to 2017. In the absence of this, I have examined whether there has been any fault or resulting injustice to Mr Y and Ms X from 2017 onwards.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman