Decision : Upheld
Decision date : 07 Jun 2021
The Ombudsman's final decision:
Summary: Based on the evidence we have seen, we have not found fault in the way the Council assessed Ms C and Mr D’s finances and its decision to charge them a contribution towards the cost of their care. There was fault in the Council’s delay in deciding whether Ms C and Mr D could use their direct payment to pay family members to provide care. The Council has agreed to apologise, provide its decision and pay a financial remedy.
- Ms C and Mr D are adults with additional needs who require care and support. Their mother, Mrs B makes the complaint on their behalf as Ms C and Mr D do not have the mental capacity to make the complaint.
- Mrs B says the Council has not properly assessed Ms C and Mr D’s finances and says it should waive charges for Ms C and Mr D on a discretionary basis.
What I have investigated
- I have investigated Mrs B’s complaint about the Council’s financial assessment and the way it made decisions on the use of discretionary powers. Paragraphs 83 and 84 explain the complaints I have not investigated.
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)
- Before proceeding to investigate a complaint, we would normally expect the complaint to have been considered under the Council’s complaints procedure.
- The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), 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 the information that Mrs B and the Council have provided, the relevant law, guidance and the Council’s policies and both sides’ comments on the draft decision.
What I found
Law, guidance and policies
- The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge. The Council also has its own policies.
- Councils must carry out a financial assessment if they decide to charge for the care and support. This will assess the person’s capital and income.
- The charging rules are different depending on whether the person receives care and support at home or in a residential setting.
- I have set out the rules relevant to receiving care at home.
Minimum income guarantee
- When a council assesses a person’s income, they must ensure that the person is left with the minimum income guarantee (MIG) after charges have been deducted.
- The government publishes a circular each year which sets out what the MIG will be for that year. When the government first calculated the MIG in 2015, it used the basic levels of income support or the guaranteed credit element of pension credit plus a buffer of 25%. The government has not changed the MIG since 2015.
- The purpose of the MIG is to ensure that a person has sufficient funds to meet their basic needs such as purchasing food, utility costs or insurance. This must be after any housing costs such as rent and council tax net of any benefits provided to support these costs – and after any disability related expenditure.
- Local authorities may take most of the benefits people receive into account as income, but some benefits, such as the mobility element of the Disability Living Allowance (DLA) or Personal Independence Payment (PIP) must be disregard as income (among others).
Disability related expenditure (DRE)
- Paragraph 39 of Annex C of the Guidance says that where disability-related benefits are taken into account, the local authority should 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 local authority.
- The Guidance says there is no exhaustive list of DRE, but has a list of items which the Council should include when assessing DRE. This list includes:
- ‘the cost of any specialist items needed to meet the person’s disability needs’. The Guidance gives some examples such as:
- Day or night care which is not being arranged by the Council.
- Councils have the discretion to choose whether or not to charge under section 14 of the Care Act. Where a council decides to charge, it must follow the regulations and have regard to the Guidance.
- The Guidance also says:
- Local authorities should develop and maintain a charging policy on how they wish to apply the discretion.
- Although local authorities have this discretion, this should not lead to two people with similar needs, and receiving similar types of care and support, being charged differently.
Direct Payments / Paying family members
- A person can choose to receive direct payments to arrange the care and support themselves.
- The Care and Support (Direct Payments) Regulations 2014 regulations say direct payments cannot be used to pay for care and support provided by a close family member living in the same household, except where the local authority determines this to be necessary.
- Family members can be paid for the administration/management of the direct payments.
The Council’s policy
- The Council’s policy says the following:
- Allowances will be made for housing costs net of any benefit received towards these. Housing costs include rent, council tax, mortgage repayments and ground rent.
- Where a service user lives with an adult carer and is not directly liable for housing costs, for example, is not on the tenancy agreement, they will only be allowed a housing cost allowance if there is an increase to their carer’s costs as a result of the cared for person living there (for example a non-dependant deduction on housing benefit or loss of single person discount on Council tax). The allowance made in these circumstances will be equal to the additional cost to the adult carer.
- Where money has been paid to a family member as a payment for them meeting an eligible need or other needs of the service user. An allowance (for DRE) will not usually be given unless there are exceptional circumstances agreed by the Council’s funding panel.
- Service users have to provide evidence of expenditure such as receipts, invoices or proof of payment.
- Where a service user feels that the DRE allowance given does not cover the additional cost, they can ask for this to be reconsidered.
- Ms C and Mr D have additional needs for care and support and live at home with their parents, Mr and Mrs B, and another adult sibling. Mr D lived in a residential placement until July 2019.
- There was a long delay in the Council completing a care plan for Ms C and Mr D which was the subject of separate complaint to the Ombudsman. Mrs B agreed the care plans in September 2019. The proposal was that Ms C and Mr D would receive 65 hours of support per week each. Mrs B was satisfied with those plans but disagreed with the Council’s request that Ms C and Mr D pay a contribution towards the cost of their care package.
- In October 2019 Mrs B complained to the Council via her MP. She said the Council had made an offer of a care package for Ms C and Mr D, but she had refused the offer as Ms C and Mr D would have to pay a weekly contribution from their income (£83.65). I have summarised Mrs B’s complaints. Mrs B said:
- She had been a carer for 25 years and had suffered a loss of income during that time as she had been unable to pursue a career. Mr B became self-employed in 2005 to help with the care which also reduced his income.
- The Council favoured business over family. The cost of Mr D’s previous residential placement was a lot higher (£4,200 per week) than the cost of support at home (around £1,196 per week for Ms C and Mr D each) so the Council was saving a significant amount of money.
- The Council chose to charge the benefits of the most vulnerable people in society. These people lacked the skills to work, to look after themselves or to function in society.
- If a person’s only income was benefits, then charging caused hardship. The Court of Protection did not charge for their services, for example. The Council should not charge people unless they had some other income than benefits.
- It made no sense to use benefits provided from one public sector department (the Department for Works and Pensions) to pay another public sector department (the Council).
- The charging policy was a discretionary policy so the Council had discretion to waive the charges. There was no law which said that councils had to charge and many councils did not.
- She asked that the Council use its discretionary powers to stop charging people whose sole income was from benefits.
- She referred to Annex C of the Guidance and the definition of DRE which said that the assessment should allow a person enough benefit to pay for necessary DRE to meet any needs not met by the Council.
- She noted the example of DRE of ‘the cost of day and night care which was not arranged by the local authority’.
- She said the cost of day and night care that she and Mr B provided for Ms C and Mr D far exceeded the amount the Council was charging and therefore charges should be waived.
- The Council had not properly considered its discretion not to charge.
- The Council had not responded to the annex C quote in her letter from 24 November 2019.
- The Council had carried out a full financial assessment to decide how much someone could afford to pay towards their care and support.
- The assessment had been ‘correct and fair’ and had fully considered all the additional costs due to Ms C and Mr D’s disabilities. The disability related expenditure had been fully assessed and the contributions reduced accordingly.
- The panel had been given details of three cases where service users had complex needs. The purpose was to help the panel understand how decisions were made in these types of cases.
- The panel had considered Ms C and Mr D’s disabilities, their care needs and the caring responsibilities of Mr and Mrs B.
- The Council agreed that councils had a discretion not to charge but said this should not lead to two people with similar needs and similar care and support, being charged differently.
- The panel concluded: ‘having regard to all the evidence before it that there was no reasonable basis upon which it could conclude that there were ‘extenuating circumstances’ that would justify the exercise of its discretion to waive the contributions.’
- Councils could pay family members for the support they provided if there were ‘extenuating circumstances’.
- The document she had presented at the meeting on 2 March 2020 showed that the cost of living calculation did not cover the cost of living and that the Council had disallowed DREs.
- The Council had paid Mr D’s previous residential placement £157,500 for an unused placement. This would have covered the charges for the next 100 years.
- Mrs B asked for a rent cost to be included, but the Council disallowed this as Ms C and Mr D did not pay rent. Mrs B said that she and Mr B lived in a larger house because they had to accommodate the children, but the Council had not allowed for this cost as a DRE.
- Mrs B also questioned why the Council turned down extra heating costs. She said she had been told that this was because there were five people living in the house so the cost was divided by five and was then judged not to be above average.
- The Council could allow an increase to a carer’s housing costs as a result of the cared for person living there. However, Mrs B had not provided any evidence of the cost. Mr and Mrs B did not pay a higher rent and only had a small mortgage. They did not provide direct evidence of a higher cost.
- When the Council assessed heating, it would compare the cost of heating the assessed person’s property with the general cost of heating that type of property. This was not done per person, but per property. If the yearly bill was higher than the average, then the difference would be split between the occupants and that amount would be considered as a DRE. They had looked at Mr and Mrs B’s house but the yearly cost was not higher than the average for that type of property.
- I noted the Council’s policy said payment of family members could be allowed as a DRE but only in exceptional circumstances. The Council said this would have to be agreed as part of the care plan which was not the case for Ms C and Mr D.
- Ms C and Mr D would be 25 years old in February 2021, so their MIGs would increase and they would no longer have to pay a contribution from that date.
Analysis – was there fault?
- Firstly, generally speaking, when a council has discretion to take action or not, it would be difficult for the Ombudsman to find fault if a council can show that it has properly considered the use of the discretion. The essence of a discretion is that there is a choice.
- Therefore, although I understand and may sympathise with a lot of the reasons why Mrs B feels the Council should exercise discretion, I can only investigate whether there was fault in the way the Council considered the matter.
- Mrs B’s main complaint was that the Council had not used its discretion to waive the charges as Ms C and Mr D’s only income was disability related benefits.
- The Council said it had fully considered applying a discretion to Ms C and Mr D’s cases but had concluded that there were no reasons to allow a discretion. The Council also pointed out that, although councils had discretion, it should not lead to two people with similar needs and similar types of care and support, being charged differently.
- The word ‘discretion’ has different meanings in the regulations and Guidance.
- The discretion Mrs B referred to in the Guidance related mostly to the setting of a council’s charging policy.
- But councils cannot set aside policies entirely, which was the point the Council was making.
- Councils also have a certain amount of discretion in deciding whether to charge individuals, through the financial assessment. That is a different discretion and councils should be able to show that they have considered the individual circumstances of the case when they applied the general policy.
- There is enough evidence on the documents that I have seen that the Council gave consideration to Mrs B’s request not to charge a contribution.
- The Council responded to Mrs B’s main argument which was that people whose sole income was benefits should not be charged. The Council said the regulations, Guidance and its own policies allowed for the charging of people in receipt of benefits and there was nothing in Ms C and Mr D’s cases that was different to disapply that general principle.
- The Council considered whether there were any exceptional circumstances in Ms C and Mr D’s case which meant they should not pay for their charges and said there were not. The Council said it properly considered Ms C and Mr D’s individual circumstances, finances, DREs and the caring responsibilities of Mr B and Mrs B but it had concluded that Ms C and Mr D could afford to pay a contribution towards their care. The Council considered the individual finances and circumstances of Ms C and Mr D and the family and compared them to similar families.
- I do not uphold Mrs B’s complaint therefore, that the Council did not consider her request for a discretionary waiver of the charges.
- Mrs B also argued that, by charging Ms C and Mr D, the Council was transferring money given by one publicly funded body, the DWP, to pay for another publicly funded entity, the Council. She said this could not be what the legislation intended.
- The Council has not directly responded to this, but the general principle is set out in the regulations and Guidance which is that councils can take disability related benefits into account when carrying out financial assessments and that people in receipt of disability benefits can be charged. This will inevitably mean some level of transfer of funding from one publicly funded department to another.
- Similarly, the fact that other public bodies such as the Court of Protection did not charge did not affect the charging regulations for councils.
Financial assessment and DREs
- I have considered the Council’s financial assessment as part of my investigation. I note that Mrs B had a right of appeal if she wanted to challenge any particular DRE decision and she did not do this.
- Therefore, I have not gone through each DRE on Mrs B’s 11-page document, but have considered the assessment overall and a few of the DREs Mrs B questioned.
- I have not found fault in the Council’s approach to the financial assessment. The Council considered the income Ms C and Mr D received and correctly disregarded some of the income such as the mobility element of the DLA. It considered Ms C and Mr D’s general outgoings and DREs.
- Mrs B provided her own calculation of the cost of living, which she said was higher than the MIG of £134. However, Mrs B included DREs in her calculation so it was difficult to disentangle the figures. The Council considered the DREs and approved some of those as DRE. I find no fault in that approach.
- I also find no fault in the way the Council considered the issue of housing costs as Mrs B did not provide evidence of an actual cost.
- I have also not found fault with the way the Council considered the cost of heating. It compared the cost of heating the house with a similar house and said that the yearly cost was not higher than usual.
- Mrs B also complained that the cost of the care package at home was a lot lower than the cost of the previous residential placements.
- Mrs B described how the couple’s income had drastically reduced as a result of becoming carers for their children and how they provided so much care for free. It seemed therefore unfair that the Council would insist on charging Ms C and Mr D, who were on low incomes consisting purely of benefits, when the Council was saving so much money from the change in placement.
- Although I understand Mrs B’s argument and this was a strong argument to allow a discretion, I can only consider whether there was fault in the Council’s actions.
- Generally speaking, a council bases its charges on the cost of providing the care as set out in the care plan (the personal budget) and compares this with the ability of the person to pay as determined by the financial assessment.
- The Council does not have a duty to reduce the charges because an alternative placement would be more expensive. Therefore, there is no evidence of fault in the Council’s actions.
- Mrs B says the Council never properly answered her complaint about its interpretation of annex C of the Guidance. She said that she and Mr B provided a lot of day and night-time care and that this exceeded the amount the Council proposed to charge.
- The Council refused the DRE for this care as it said there was no evidence of a real cost to Ms C or Mr D. I agree that, generally speaking, DRE is a consideration of a real cost and, most of the time, the word ‘expenditure’ is taken literally. Therefore, if there is no expenditure, there can be no DRE.
- However, I do note the policy says payment of family members can be considered as a DRE. This is linked, (although not the same) to Mrs B’s later request that she and Mr B should be allowed to use the direct payments to pay themselves as carers for Ms C and Mr D.
- As the Council has not made a decision on this matter, I have not investigated this, as I explain further in paragraph 83.
Delay in decision on paying family members
- However, I have further considered Mrs B’s complaint which is that the Council did not provide her with a response to her request to pay family members and that the delay in the response was too long.
- Mrs B first raised the issue of using the direct payments to pay family members in her appeal in June 2020 and again in August 2020. The Council did not respond. Mrs B raised a complaint about the lack of response in December 2020. The Council then said it would need to review the assessments and care plans before it would decide.
- Although I accept that the decision to pay family members would be a social work decision and may require a review of the assessment and care plan, I do not accept that it takes a year to carry out a review and make a decision. The Council has already upheld Mrs B’s complaint that there was an unacceptable delay and I agree there was fault.
- Mrs B has suffered an injustice as she went through a lot of time and trouble to pursue the request and the related complaint and is still waiting for a substantive response to her request. I recommend the Council pays £300 to reflect this.
- The Council has agreed to take the following actions within one month of the final decision. The Council will:
- Apologise to Mrs B in writing for the fault.
- Pay £300 to Mrs B.
- Complete any necessary reviews of the needs assessments and care plans of Ms C and Mr D and give a decision on whether they can use all or some of their direct payments to pay family members.
- I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.
Parts of the complaint that I did not investigate
- I have not investigated Mrs B’s request that family members should be paid to be the carers for Ms C and Mr D. The Council has not given its response yet to the request. The Council will decide once it has completed a review of the assessments of Ms C and Mr D’s needs and their care plans. Once the Council has made a decision, Mrs B will have a right of complaint. Therefore, the Ombudsman cannot investigate this matter yet.
- Mrs B has said the Council should never charge people whose sole income was disability benefits. This was therefore, indirectly, a complaint about the Council’s charging policy. There has been recent case law which commented, among other things, on how the Council considered the impact on severely disabled people, when it made changes to its charging policy. If Mrs B wanted to challenge the Council’s policy on that basis, the courts would be better placed to make that decision and this would take the matter out of the Ombudsman’s jurisdiction.
Investigator's decision on behalf of the Ombudsman