Summary: The Council failed to fully consider Mr C’s challenge to the adult social care financial assessment which determined he should pay around £57 per week. The Council may be fettering its discretion by saying it will not take household maintenance costs into account and has not evidenced it has considered any impact on Mr C’s wellbeing, despite it being a key principle of the Care Act 2014. This leaves Mr C with uncertainty about whether the Council has made the right decision or whether it should waive the charge in full or in part. The Council should apologise for this and review its decision about Mr C’s financial contribution.

The complaint

1. The complainant, who I will call Mr C, says he is not receiving the care support he needs because he cannot afford to pay the money towards the care costs the Council says he must pay. Mr C says he is emotionally, physically, and spiritually drained. Mr C is not sleeping or eating properly because of the high stress levels and lack of care support, and his health is declining.

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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:
• Information provided by Mr C, including in a telephone conversation.
• Information provided by the Council, including its Adult Social Care Charging Policy.
• The Care Act 2014 and supporting statutory guidance.
• The Care and Support (Charging and Assessment of Resources) Regulations 2014.
5. Mr C 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

6. The Council completed an assessment of Mr C’s care and support needs in accordance with the Care Act 2014. The Council decided Mr C was eligible for seven hours of care support per week.
7. Following an assessment of care and support needs, the Council must then assess what, if anything, the person can afford to pay towards their care support. 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)
8. The council’s charging policy must comply with the principles in law and guidance, including charges should not reduce a person’s income below Income Support plus 25%. The Council can take a person’s capital and savings into account subject to certain conditions. If a person incurs expenses directly related to any disability he or she has, the Council should take that into account when assessing his or her finances. (Care Act 2014 Department for Health)
9. The Council assessed Mr C in line with its charging policy, law and guidance and decided Mr C must contribute financially towards the cost of his care. Mr C appealed the charge on the basis he had previously not had to pay anything, and his situation was the same in that his only income is benefits related income. The Council found no errors in its assessment. The Council explained the reason Mr C now had to contribute is because his mortgage is paid off, and his benefits have slightly increased.
10. Mr C asked the Council to provide the care hours it would be paying for if he was paying for the remainder. The Council agreed to this. The Council decided Mr C had capacity to understand the risks of not receiving his full care package. Mr C receives three hours a week instead of the seven hours he needs.
11. Mr C is a homeowner. Mr C told me he cannot afford to pay the charge, because it would then be difficult to maintain his house. The amount he is left with pays for daily living expenses of bills and food. Mr C says his carpets and windows need replacing, his boiler needs servicing, and he needs a new gate as his property is currently unsecure. Mr C says he will not be able to afford this if paying £57 per week for his care costs. I do not know whether Mr C has made this situation clear to the Council. Mr C now has an advocate supporting him, who says Mr C was disadvantaged by not having an advocate throughout the financial assessment process.
12. The Council’s policy says, ‘No allowance will be made for housing maintenance costs, as these are costs faced by homeowners regardless of disability.’ This section of the policy allows no room for the Council to consider using discretion to waive or reduce the charge if a homeowner may be adversely affected. A public body cannot prevent itself from properly considering the exercise of its discretion in individual cases if it does it may be fettering its discretion. While it may permissibly have guidance or a policy on how it will ordinarily exercise its discretion, it must usually operate any such guidance or policy in a flexible manner. ‘The general rule is that anyone who has to exercise a statutory discretion must not “shut his ears to an application”…What the authority must not do is to refuse to listen at all.’ (Lord Reid from British Oxygen Co Ltd v Minister of Technology)
13. This section of the Council’s policy does not allow it to consider individual circumstances. If Mr C cannot afford to do works to his property and it falls into disrepair this could negatively affect his wellbeing. A house in disrepair could also be a risk to his safety.
14. The Care Act 2014 requires councils to promote wellbeing, this is a broad concept and includes the suitability of living accommodation, social and economic wellbeing, physical and mental health, and emotional wellbeing.
15. Mr C argues his wellbeing is affected by the Council’s decision on his financial contribution. Mr C says this means he cannot afford to maintain his home. Mr C says this negatively impacts on his mental health and emotional wellbeing. Mr C says he is not eating or sleeping properly, he is struggling to concentrate on things, he is tense and that makes the stiffness in his body worse.
16. The Council’s charging policy allows it to apply a waiver if a service user feels they cannot afford to pay the charge in full or in part. The Council did not direct Mr C to apply for a waiver, because it considered waiving the charge under another section of its policy that allows it to consider this if it believed the financial assessment process would adversely affect a service user’s health or the person genuinely cannot afford to pay the charge. The Council’s response is that as Mr C requested an alternative solution that the Council provided the care hours it would contribute financially for, and it agreed to provide this, the risks to Mr C were minimal. The Council has not reached a decision on whether the process adversely affects Mr C’s health and/or whether Mr C genuinely cannot afford to pay the charge.

Conclusion

17. The Council has a duty to meet Mr C’s assessed eligible care needs, and at present is not meeting these needs in full. The only reason it is not doing so is because of finances, because Mr C has refused to pay a contribution towards the costs. The Council has decided Mr C can take this risk so is not providing the full care package.
18. In making its decision I have not seen evidence the Council has:

• Considered its discretion to depart from its policy not to allow housing maintenance costs for homeowners. It is potentially fettering its discretion.
• Considered the impact on Mr C’s wellbeing caused by its decision to charge around £57 per week.
• Decided whether the financial assessment process adversely affects Mr C’s health and/or whether Mr C can genuinely not afford to pay the charge, in line with Section 10 of its charging policy.

19. This is fault, and leaves Mr C with uncertainty over whether the Council has properly considered the impact of the assessed charge towards care costs.

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Agreed action

20. To acknowledge the impact on Mr C, and to prevent future problems, the Council will:
1. Apologise to Mr C for failing to consider the issues listed at paragraph 18.
2. Review Mr C’s case taking into consideration the issues listed at paragraph 18.
3. If the Council decides it should waive all or part of Mr C’s charge towards his care support, consider a monetary payment to reflect that because of its failings Mr C has been without the full care support the Council assessed he needs. If Mr C is unhappy with the outcome of the Council’s review, he can make a new complaint about that issue.
21. The Council should complete the above actions within three months of the Ombudsman’s final decision and provide evidence of its compliance to the Ombudsman.

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Final decision

22. I have completed my investigation on the basis the agreed actions are sufficient to acknowledge the impact on Mr C.

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Investigator's decision on behalf of the Ombudsman