Summary: Ms X complains on behalf of Mr and Mrs Y about its significantly increased charge for Mr Y’s care. She said it caused them extreme emotional distress as they no longer have enough money for food and bills. We find the Council was not at fault.

The complaint

1. The complainant, whom I shall refer to as Ms X, complained on behalf of her mother in law, Mrs Y, and Mrs Y’s husband Mr Y. Ms X complained that the Council:
• Increased Mr Y’s contribution to his care and this caused them financial hardship.
• Increased the contribution further when they challenged this.
2. Ms X says this caused Mrs Y a significant financial loss and she cannot now manage on the money she has left as she is reliant on Mr Y’s income. They do not now have enough money to pay their utility and food bills. It has caused Mrs Y “extreme emotional distress”. They would like the Council to use its discretionary power to reduce Mr Y’s contribution.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)
5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)

Back to top

How I considered this complaint

6. I considered information from the Complainant and from the Council.
7. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

Back to top

What I found

Background

Charging for social care services: the power to charge

8. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in settings other than care homes. A council has discretion to charge for non-residential care following a person’s needs assessment. Where it decides to charge a council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
9. Where the council has decided to charge, it must carry out a financial assessment of what a person can afford to pay. It has no power to assess couples according to their joint resources: each person must be treated individually. The council must not charge more than the cost it incurs in meeting the assessed needs of the individual. It must regularly reassess a person’s ability to meet the cost of their care to take account of any changes in their resources.  
10. Councils must ensure that they do not reduce a person’s income below a specified level (the minimum income guarantee) after charges have been deducted. The amounts are set out in the Care and Support (Charging and Assessment of Resources) Regulations. However, this is only a minimum and councils have discretion to set a higher level if they wish.

What happened

11. Mr Y received care at home where he remained in bed due to his significant care needs. The Council provided a package of care and Mrs Y also supported him as his main carer.
12. Mr Y has paid a contribution to his care since 2016/17. In April 2020, the Council changed its charging policy to incorporate changes introduced by the statutory guidance to the Care Act 2015. This meant the Council would now only calculate a person’s charge based on their own their own finances including 50% of any joint assets or liabilities. Mr and Mrs Y were previously assessed as a couple. This significantly increased the amount Mr Y had to pay.
13. The Council had recognised the significant increase that the policy change would cause for some people and introduced it over two years to help people adjust. In Mr Y’s case, from April 2020 to March 2021, the Council also allowed against his charges:
• a special allowance of £38.02 per week
• an exceptional disregard of £48.24 per week
• disability related expenditure of £65.85 per week.
14. From April 2021 to March 2022, it allowed the following:
• an exceptional disregard of £48.24 per week
• disability related expenditure of £65.85 per week later reviewed and adjusted to £77.67 per week.
15. The Council did not initially include Mr Y’s private pension in his financial assessment, and subsequently included this from May 2021. Also, the £48.24 exceptional disregard was found to be an error. Once it realised, the Council said it would remove it from 1 August 2021. It did not backdate it to March 2019 when it was first applied which was beneficial to Mr Y.
16. The Council checked Mr Y’s benefits and believed he was in receipt of those benefits to which he was entitled. Mrs Y did not receive services from the Council, so it was not able to consider her financial position or benefits entitlement. It directed Ms X to Age UK for advice on this.
17. The Council also said there was no evidence to suggest hardship because there was enough money in Mr Y’s account to pay his assessed charge after his outgoings. Ms X said there was expenditure which was not listed that should be included. The Council agreed to complete a further review on receipt of full information about their income and outgoings, to further consider discretionary support for hardship.

Was there fault which caused injustice?

18. The Council does have discretionary powers to use in cases of exceptional hardship and it has already agreed to consider this. It is not my role to decide whether the Council should use these in Mr Y’s case.
19. The Council was not at fault in updating its policy which was triggered by statutory guidance and which it had already delayed implementing. It took suitable action to ensure people were able to adjust to the significant increase in charges over time and provided information about this. In Mr Y’s case, he also benefitted from errors which meant his contribution was not as high as it should have been. The Council did everything it should to ensure the contribution it has asked Mr Y to pay is affordable and also agreed to consider discretionary adjustments. I found no fault in this.

Back to top

Final decision

20. I have completed my investigation and do not uphold Ms X’s complaint that the Council:
• Increased Mr Y’s contribution to his care and this caused financial hardship.
• Increased the contribution further when they challenged this.

Back to top

Investigator's decision on behalf of the Ombudsman