Summary: Ms C complains about the Council’s financial assessments in deciding how much she must contribute towards the cost of her care. Ms C says she has suffered avoidable distress which has had a harmful impact on her existing health conditions. We have found no evidence of fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Ms C, complains about the Council’s financial assessments in deciding how much she must contribute towards the cost of her care. In particular, Ms C says the Council has not properly taken into account the impact of her debt repayment and other outgoings when considering the affordability of the contribution required.

2. Ms C says because of the Council’s fault, she has suffered avoidable distress which has had a harmful impact on her existing health conditions and cannot pay towards the cost of essential care which would put her health and well-being at risk.

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The Ombudsman’s role and powers

3. 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)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with an organisation’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

6. I read the papers provided by Ms C and discussed the complaint with her representative. I have considered some information from the Council. I have explained my draft decision to Ms C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

Charging for social care services: the power to charge

7. 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 places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the 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)

Financial Assessment

8. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. Councils have no power to assess couples according to their joint financial resources. A council must treat each person individually. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.
9. People receiving care and support other than in a care home need to keep a certain level of income to cover their living costs. Councils’ financial assessments can take a person’s income and capital into consideration, but not the value of their home. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by national government and reviewed each year. A council can allow people to keep more than the MIG. (Care Act 2014)
10. The Care and Support (Charging and Assessment of Resources) Regulations 2014 say in assessing income, a council must take account of any housing-related costs which the adult is liable to meet in respect of the adult’s main or only home. Such costs include mortgage, rent and council tax. It also sets out other payments a council must take account of. This does not include any debt or loan repayments.

Disability Related Expenditure

11. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. The Care and Support Statutory Guidance sets out a list of examples of such expenditure. It says any reasonable additional costs directly related to a person's disability should be included. What counts as DRE should not be limited to what is necessary for care and support. For example, above average heating costs should be considered. It is up to a council to decide whether an item is directly related to a person’s disability and whether the cost claimed is reasonable.

Council’s Charging Policy ‘Determining Contributions to Personal Budgets’

12. The Council’s policy says its overarching principle is that adults should only be required to pay what they can afford. It goes on to say that people will be entitled to financial support based on a means test and some will be entitled to free care and ensure that adults are not charged more than it is reasonably practicable for them to pay. The policy also says it will apply the charging rules equally so those with similar needs or services are treated the same and minimise anomalies between different care settings.

Key events

13. Ms C had spent time in hospital following a fall at home and was discharged with COVID-19 funded care for up to six weeks. The Council completed an assessment of Ms C’s care and support needs in August 2021 when the COVID-19 funded care period had ended. This assessment found that Ms C had eligible long term care needs which were likely to deteriorate due to a progressive disorder. The Council was to seek funding for a one hour morning care package on a daily basis. The assessment noted that a financial assessment would need to be completed to establish any contribution required from Ms C for her care going forward.
14. The Council completed a financial assessment in September and wrote to Ms C in mid-September with the outcome that she would need to contribute £105.21 per week to her care from 30 July 2021. The Council enclosed a copy of the breakdown of how it had reached this assessment.
15. Ms C emailed the Council to raise concerns about the assessment on receiving its letter. The Council discussed the assessment with Ms C towards the end of September and she provided further information.
16. The Council reviewed Ms C’s assessment and wrote to her with a revised weekly contribution of £58.13 due to changing how it treated her son’s regular household payments. The Council also confirmed it had changed the start date from 30 July to 2 September 2021. The Council provided details of its complaint procedure.
17. Ms C’s representative made a complaint to the Council towards the end of October about its client contribution decision. This explained Ms C had considerable debt that had not been included in the assessment and identified DRE items that had not been included. The Council provided a response at the first stage of its complaints procedure to Ms C in December. This noted the Council had already completed a review of the financial assessment which had reduced the amount Ms C was required to contribute to her care from £105.21 to £58.13 per week from 30 August 2021. The Council provided an explanation about how it had assessed various items and that debt repayments would only be considered if the debt was accrued as a direct result of her disability which did not appear to be the case based on the information provided. The Council explained it had further amended Ms C’s assessment to include the whole rent liability as she was the sole tenant which further reduced her contribution to £33.72 per week from 30 August. The Council apologised this had not been completed in its earlier review.
18. Ms C complained to the Ombudsman. The Council subsequently completed a further review of its assessment and revised the contribution. The most recent client contribution letter from the Council in June 2022 required Ms C to pay £21.56 each week from 18 April 2022. The Council also agreed to waive all outstanding client contributions to this date. The Council has confirmed to the Ombudsman it will waive outstanding client contributions to the outcome of my investigation. The Ombudsman would welcome this action.
19. The Council further explained that it would review the matter further if Ms C contacted the debt company to see if it was possible to extend the length of the loan to reduce the monthly amount or if it was prepared to lower the monthly amount.
20. Ms C’s representative has explained Ms C did not wish to contact the debt company as she would find this too much to deal with and it would adversely impact her mental health.

My consideration

21. Based on the information provided, I am satisfied the Council has properly considered additional information provided by Ms C and reviewed its financial assessments accordingly. These reviews have reduced the required weekly contribution from £105.21 to £21.56. I also note the Council has waived any outstanding contribution from Ms C to the outcome of my investigation.
22. I have also found no fault in how the Council considered Ms C’s existing debt during its financial assessments. This is because there is no requirement to consider debt or loan repayments in the relevant legislation. The Council noted Ms C’s debt as part of its financial assessment and explained it would only consider debt repayments if the debt was accrued as a direct result of her disability. The Council decided this was not the case. The Council went further in suggesting it would review the matter further if Ms C contacted the debt company to see if the payments could be reduced by extending the period of the loan or reducing the amount. Although I note the reasons why Ms C did not wish to do so I do not consider the Council acted with fault in making this suggestion.

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Final decision

23. I have completed my investigation as I have found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman