Summary: There is no evidence the Council was at fault in the way it conducted the financial assessment once Mrs X’s increase in income was known. The care plan should have reflected more accurately the extent of some of her needs: the Council amended that and allowed the disability-related expenditure accordingly.

The complaint

1. Ms A (as I shall call her) complains about the way the Council increased her mother’s contributions towards the cost of her care. She also complains the Council acted intrusively when it sought further evidence about the extent of her mother’s needs, to the extent she believes there was possible discrimination against her family.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I considered the information provided by the Council and by Ms A. I spoke to Ms A. Both Ms A and the Council had the opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision. This statement does not refer to all the information which I have seen during the investigation, but I am satisfied the evidence it contains supports the findings.

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What I found

Relevant law and guidance

5. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the local authority must involve any carer the adult has. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
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. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)
8. 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 not be inflexible in the costs it accepts, and should always consider individual circumstances. Some councils disregard set amounts for DRE, but if a person’s costs are higher than the set amount a full assessment of their costs should be made.
9. The Care and Support Statutory guidance (at Annex C) contains a list of which councils might allow but the list is not exhaustive. The guidance also says “it may be reasonable for a council not to allow for items where a reasonable alternative is available at lesser cost. For example, a council might adopt a policy not to allow for the private purchase cost of continence pads, where these are available from the NHS”. It goes on, “The care plan may be a good starting point for considering what is necessary disability-related expenditure. However, flexibility is needed. What is disability-related expenditure should not be limited to what is necessary for care and support. For example, above average heating costs should be considered”.
10. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
11. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
     
12. The protected characteristics referred to in the Act are:

• age,
• disability,
• gender reassignment,
• marriage and civil partnership,
• pregnancy and maternity,
• race,
• religion or belief,
• sex, and
• sexual orientation.

What happened – the financial assessment

13. Mrs X is an elderly lady with care needs following a stroke. She is doubly incontinent, requires meal preparation and encouragement to eat, and medication prompting. Mrs X has a care package arranged by the Council of three care calls a day.
14. Towards the end of 2019 the Council sent Mrs X a form to complete about her finances, so it could review her level of contribution towards the cost of her care. As Mrs X’s allowances had exceeded her income up to that time, she had not been required to make a contribution towards the cost of her care. Ms A emailed the finance team on 16 December 2019 and said she had tried to call but it went to voicemail. She said “My mother doesn’t pay for her care and nothing has changed in her circumstances- this is unclear ...”
15. Mrs X was very ill and in hospital at the start of 2020. As a result she did not return the financial assessment form until March 2020. Ms A says during that time she felt the Council was overzealous in its attempts to get her mother to complete the necessary forms.
16. The Council’s records show that Ms A emailed the deputy head of Adult Care services on 17 December saying she had a considerable amount of work to carry out personally (her sister had recently died in tragic circumstances) and could she ask the team to “park” the review for now. The deputy head emailed back the same day saying “I have requested that you are given some extra time to deal with this which won’t be a problem. I note that your mother is currently paying zero towards her care costs, if there have been no significant changes then this will probably remain the same but we can’t commit to that until we have the financial details we need.”
17. On 2 February Ms A emailed the finance team apologising she had not returned the form by the end of January as agreed. She said Mrs X had been critically ill and was not able to explain all her expenses to Ms A: Ms A added she did not have power of attorney to act completely on her mother’s behalf. She asked for more time. The finance officer replied “Under the circumstances of course you can have more time to complete the assessment and provide the information needed. If you think it would be more beneficial for us to come out and visit mum once she has returned home and settled back in, then that can be arranged. Sometimes when providing DRE information it can be easier, if not that is ok and we would just ask for you to provide receipts of these expenses along with the bank statements and any bill information.”
18. On 24 February Ms A emailed to say the form would be sent by 4 March. On 19 March the finance officer wrote to say the full cost of chargeable services would be added from 23 March unless the completed claim with the necessary evidence was received by 22 March. Ms A submitted the completed forms by 20 March.
19. The form showed Mrs X no longer made a mortgage payment of £62.81. This, together with an increase in some benefits, meant she was now liable for a contribution of £78.61 from April 2020.
20. Ms A contacted the Council on behalf of Mrs X when they were notified of the contribution. She said her mother had disability-related expenses of over £250 a week which the Council had not taken into account.
21. The Council tried to contact Ms A in May to speak to her by telephone but Ms A was also unwell in 2020 and said she felt unable to discuss the matter by telephone.

The complaint

22. In June 2020 Ms A wrote to the Council with a complaint. She said the Council was making excessive enquiries and demands for evidence of her mother’s disability-related expenses which amounted to harassment. She said the finance team had asked her mother’s case assessor for better evidence of her mother’s incontinence and her mother’s carers had been contacted as well. She said her mother’s ill health had meant she had not retained all the receipts which the Council requested as evidence, that she had personally supplied detailed medical evidence from the District Nurses but the finance team had not told the case assessor it had received this.
23. The Council responded to the complaint. It said it was its duty in protecting the public purse to ensure it had evidence on which to base a decision to reduce charges. It said it understood why Mrs X had not retained receipts but in those circumstances it had sought information from other sources – such as her care plan – to evidence the need.
24. The Council denied it had challenged Mrs X’s care plan. It said the finance team had spoken to the case assessor because the care plan as it stood did not provide the evidence of expenditure related to incontinence needed to reduce Mrs X’s costs. It said the case assessor had now updated the care plan and as a result it had now been able to allow more disability related expenditure than the notional £20 a week it normally applied.
25. Finally the Council said the case assessor would visit Mrs X to reassess her needs to see if the current care package was sufficient. It said it would examine the additional information Ms A had supplied in respect of disability related expenditure but said that it would not, for example, allow the claimed travel expenses of £34 a week as Mrs X already received a mobility allowance of £62 a week which was disregarded in the calculation of her contribution.
26. Ms A complained again to the Council in August. She asked why – when she had sent considerable medical evidence of her mother’s incontinence – the Council had chosen instead to seek evidence from non-medically qualified staff. She said the Council’s approach was overzealous and offensive. She said the Council’s approach was potentially disability discrimination because her mother would have been prevented by her disabilities from completing the task of producing the necessary evidence and was “a potential breach of the Equality Act by virtue of the suspected discrimination and ongoing victimisation/harassment taking place. It does not appear that other white male comparators would have had to evidence their medical conditions to the same standards and be challenged at every conjecture”.
27. The Council’s records show the head of the benefits department referred to the Council’s equality and diversity manager the concerns which Ms A had brought in respect of potential discrimination and a breach of the Equality Act. She said, “We have not acted outside our remit but simply wanted to clarify conflicting information received. (Ms A) believes we have asked excessive questions to determine whether costs should be classified as disability related expenditure or not and she has also been told it is unusual that the questions we have raised have been asked in the first place”. The equality and diversity manager responded. He said Ms A had not provided a coherent explanation of the alleged discrimination and her references to a “white male comparator” referred to equal pay judgements.
28. The Council responded to Ms A in September. It apologised if its approach had seemed intrusive but reiterated its duty to support a reduction in charges through evidence. It explained that on the basis of the information provided it had now allowed disability related expenditure of £70 a week, reflecting Mrs X’s expenditure on heating costs, incontinence pads, extra milk, extra storage heaters, laundry, bandages and general disability aids. It had not allowed other expenditure – such as replacement clothing and bedding, travel costs in excess of mobility allowance, train tickets, takeaway food – as they were not directly related to Mrs X’s disability.
29. In respect of the concerns Ms A had raised about potential discrimination, the Council said “The Council takes its responsibilities in these matters very seriously. I do not believe we have acted, at any point, in a way that discriminates against your mother because of a characteristic protected under the Equality Act. However, if you do have specific evidence of this, please do bring it to our attention.”
30. Later in September the Council wrote again to Mrs X, care of Ms A, explaining that her contribution was now assessed at £28.27 a week backdated to April 2020. In response to an indication from Ms A that she intended to complain to the Ombudsman, the Council agreed to withhold the care charges for a short period of time.
31. In November the Council wrote to Ms A to say it would send a bill for Mrs X’s care charges every four weeks as it had not received notification of a complaint to the Ombudsman.
32. In December Ms A complained to the Ombudsman. She said her mother’s genuine expenses had been discounted, there had been an excessive delay by the Council, and its enquiries had been over intrusive at a time when her mother was suffering ill health and bereavement. She said there should be a joint review by the case assessor and a finance officer which properly reviewed her mother’s expenses and needs, and the outstanding debt should be adjusted and or cancelled according to the outcome of that review.
33. The Council says its finance team carried out the review of disability related expenditure along with colleagues from the Adult Social Care team to ensure that allowances were ‘reasonable and proportionate’ to Mrs X’s needs. It says as that joint review had already been undertaken there was no requirement for a further review: the charges were correctly assessed, and payable.
34. The Council says there is no record its finance team asked the case assessor to contact Mrs X’s carers about her incontinence. The relevant manager explains that the role of the assessor in asking for more information was to assess whether Mrs X’s use of incontinence products was such that she would be entitled to them free of charge under the NHS (and thus save her more money).
35. The Council has provided details of the financial assessments and its consideration of the disability related expenditure claimed. Its records show that the actual charge after the consideration of the DRE evidence supplied by Ms A was £24.21 with effect from 23 March 2020, £25.40 with effect from 6 April 2020 and then £28.27 with effect from 13 April 2020.
36. Ms A says the Council has not been straightforward in the responses it has provided to the assessment of some DRE items. For example she says that travel costs and the cost of a chaperone to hospital appointment for Mrs X have not been allowed because it would be possible for a support worker to accompany her, but she has been told the availability of such a service is very rare. The Council says for occasional appointments it can arrange an agency support worker. It says the hospitals employ ‘navigator’ staff to signpost and accompany patients to their clinics. It says however that a chaperone to accompany Mrs X to her appointments, stay with her and escort her home is a service which the NHS, not adult social care, provides.
37. Ms A says “it was our position that we did not consider an amount was payable for social care fees. To compromise, it has been expressed at various points that we were prepared to make a payment so long as it was proportionate and reasonable to income”.

Analysis

38. The Council requested financial information from Mrs X at the end of 2019. It allowed an additional three months for Ms A to gather the information together. Mrs X and Ms A were both ill and going through difficult personal circumstances at that time and it was undoubtedly additional stress for them to complete the requested forms but there is no evidence the Council harassed them for that information.
39. Once the Council became aware of a change in Mrs X’s financial circumstances, it had a duty to charge an appropriate contribution towards the cost of her care.
40. On the receipt of information about Mrs X’s disability related expenditure, the Council says it had to make further enquiries: there were discrepancies between the information in Mrs X’s care plan and the levels of need being expressed by Ms A. Once that was clarified (and the care plan updated) the Council made the appropriate adjustments to the disability related expenditure allowance.
41. It was not fault on the part of the Council to make detailed enquiries to support a reduction in Mrs X’s contribution. It was its duty to ensure the expenditure was related directly to her disability. There is no evidence of excessive intrusion or of discrimination against her.
42. The Council acted in accordance with the statutory guidance in the way it considered the disability related expenditure claims.
43. If Mrs X’s needs in terms of disability related expenditure change, it is of course her prerogative to contact the Council.
44. There is no evidence of excessive delay on the part of the Council in its response to the complaints.

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Final decision

45. I have completed this investigation on the basis there is no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman