Summary: Mr C complained that about the actions of the Council in respect of his son, Mr D’s contribution to his care charges. In particular it failed to meet with Mr C to discuss the payment of household costs and the amount of other disability-related expenditure. We found the Council at fault for not meeting with Mr C sooner and not making more effort to explore the financial situation between Mr C and Mr D. The Council has now met with Mr C and revised the outstanding bill. It has also agreed to pay Mr C £300.

The complaint

1. Mr C complained on behalf of his son Mr D, that Warwickshire County Council (the Council):
• failed to carry out any financial assessments in respect of Mr D’s care charges between 2015 and 2019;
• after carrying out a review in February 2019 it backdated changes to the assessment to January 2015 and failed to provide any explanation for the resultant debt of over £15,000;
• failed to include adequate amounts in the disability-related expenditure for laundry and clothing costs;
• failed to allow Mr D’s contribution of 50% of the household bills in the assessment;
• failed to provide Mr D with adequate support to manage his direct payments; and
• failed to carry out a statutory carer’s assessment of Mr C.
2. This situation caused Mr C and Mr D significant distress, worry and financial hardship.

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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. 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

5. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. 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

Charging for social care services

6. 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)

Financial assessment

7. Where a council has decided to charge, 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. The Council should ensure that the information is provided in a manner that the person can easily understand in line with its duties on providing information and advice.
8. People receiving care and support other than in a care home need to retain 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 )

Disability-Related Expenditure

9. Where a council takes disability-related benefits into account when calculating how much a person should contribute towards the cost of their care, it should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs the council is not meeting. The Care and Support Statutory Guidance sets out a list of examples but 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.
10. The guidance also says that some expenditure may be allowed based on a person’s liability and circumstances to cover housing costs. These may also be determined through discussion with a person and include consideration of average levels for household types. Evidence of expenditure may be requested to verify requests for example receipts, bank statements or invoices where involving exceptionally high values, unusual types of expense. Failure to supply evidence will result in those expenses being excluded from the calculations.

What happened

11. Mr D is disabled and lives with his father, Mr C in Mr C’s house. Mr C is his carer. He receives a package of care at home. Mr C pays the household bills, but Mr D pays in cash, 50% of the bills to Mr C. Without Mr D’s contribution, Mr C could not afford the bills.
12. The Council carried out a financial assessment every year to review Mr D’s finances and calculate his contribution towards his care. The Council included in the assessment Mr D’s entitlement to income support and calculated his contribution as approximately £6 per week.
13. Over the next three years the Council calculated Mr D’s contribution on an annual basis. In 2018 it had risen to almost £10 a week. In August 2018 the Council reviewed his care needs. The assessment said Mr D was a tenant living in his parent’s home. Mr D made a lasting power of attorney giving Mr C permission to make decisions for him about financial matters.
14. In February 2019 the Council held its annual review of Mr D’s financial assessment over the telephone with Mr C. The Council discovered that Mr D had been receiving employment and support allowance instead of income support since January 2015. The Council said it would have to reassess the charges back to 2015 and this would increase Mr D’s contribution. The notes of the meeting also say:

“[Mr C] advised me that he pays all of the bills. He was unable to provide this info. He did say that he pays full rent and council tax.”

15. The Council recalculated the charges and sent invoices to Mr D going back to 2015. Mr D’s contribution had increased to £125 a week and created a debt of over £9,500.
16. Mr C instructed a solicitor to help him understand and challenge the debt. The solicitor wrote to the Council at the end of March 2019. They complained that the Council had failed to explain the debt to Mr C and sent him 43 pages of invoices and a member of staff had been rude to Mr C when he rang up to query the bills.
17. The Council replied in April 2019. It said the impact of the increase in Mr D’s income had been explained during the financial assessment and the Council had sent out the revised financial assessments before sending the invoices. It investigated the telephone call but could not find evidence to support Mr C’s recollection.
18. The solicitor wrote to the Council in October 2019 explaining that while Mr D may have capacity to make some financial decisions, he needed help from Mr C to actually make and manage the payments. The solicitor referred to Mr C operating a mainly cash-based system and explained that he could not afford the bills without Mr D’s contribution. The solicitor questioned why the Council had not sought more information about the arrangements for paying the bills rather than simply relying on one sentence from Mr C during the telephone financial assessment. They also argued it was unreasonable not to take into account Mr D’s contributions to the household bills since 2015. They said Mr C was trying to add Mr D to the tenancy but that would take time.
19. They gave further information about the amounts Mr C spent on clothing and laundry and provided some receipts and clothing labels.
20. The solicitor also said the debt had placed huge stress on Mr C and it was affecting his health. They attached a letter from his GP confirming this. They also suggested that a meeting would be helpful.
21. In February 2020 the Council carried out a mental capacity assessment and concluded that Mr D had capacity to manage his financial affairs.
22. In March 2020 the Council replied to the solicitor’s letter from October 2019. The Council questioned why Mr D was not paying the invoices and the arrears were building up. It questioned the financial arrangements noting that Mr C had said in October 2019 that Mr D could manage his finances with support and the mental capacity assessment had confirmed this. The Council had allowed for seven loads of washing a week. If there were more than this Mr C needed to provide evidence. In respect of the clothing, it said Mr C had not provided evidence to justify allowing anything extra in the assessment. It said it needed evidence of Mr D’s liability for the housing cost payments and gave details of how to apply for a waiver.
23. In July 2020 the solicitor wrote back to the Council explaining in detail the difficulty in providing evidence of Mr D’s payments towards the household bills because he paid an amount equivalent to half the bills in cash to Mr C who then paid the bills himself. The solicitor said it was unreasonable for the Council to insist on proof of liability and evidence of the payments simply because the payment method was not formalised. The solicitor said they had asked Mr C to keep a log of future contributions from Mr D.
24. The Council replied in August 2020. It repeated its view that it could not include Mr D’s payments towards the household bills ‘where there is no clear evidence that the customer is liable for said expenditure’. It referred back to the telephone financial assessment in February 2019 where Mr C said he paid all the bills. The Council also clarified that it had allowed £5.00 a week for extra clothing and beddings costs and £5.85 for laundry the calculation of disability related expenditure.
25. In November 2020 the solicitor applied for a waiver of the debt and repeated their view that the Council was unreasonable in not taking into account any of the payments Mr D had been making toward the housing costs during the period of the debt. They also said the Council had not allowed sufficient amounts for the cost of the extra washing, bedding and clothing. They said Mr C did 12 loads of washing a week but acknowledged that Mr C had also said nine loads a week. They said Mr C struggled to keep receipts and logs but the Council had rejected the receipts he had provided.
26. In March 2021 the Council refused to waive the debt or increase the disability- related expenditure. It said:
• No evidence of financial hardship had been provided and Mr C had not asked about repayment options.
• The financial assessments were correct.
• The solicitor had only recently said that Mr D paid half the household bills to Mr C and this contradicted what Mr C said in February 2019.
• The Council had arranged a carers assessment for Mr C in 2019 but he was not referred back for a statutory assessment.
• Mr C had not provided sufficient evidence to support a higher disregard for clothing or laundry .
27. In February 2022 the solicitor complained to us on behalf of Mr C.
28. In response to my enquiries the Council accepts that the communication between the Council and the solicitor had failed to get to the nub of the dispute and it had arranged to visit Mr C in August 2022 to discuss all the issues in respect of the financial assessment. The solicitor said Mr C is experiencing continued ill-health in part due to the immense stress of this situation.

Analysis

failed to carry out any financial assessments between 2015 and 2019

29. The Council has provided evidence it carried out financial assessments every year. It only discovered that Mr D’s income had changed in February 2019 and so revised the assessments from the date of the change in 2015. I do not find fault here.

after carrying out a review in February 2019 it backdated changes to the assessment to January 2015 and failed to provide any explanation for the resultant debt of over £15000

30. The Council explained to Mr C during the telephone financial assessment In February 2019 that it would have to reassess the situation from 2015 and this would increase Mr D’s contribution. It then sent Mr C copies of the financial assessments before sending 43 pages of revised invoices.
31. Mr D had a duty to inform the Council of any changes to his income when carrying out the financial assessment. Mr D and Mr C failed to do so and so the Council was entitled to backdate the changes to 2015. I accept the Council explained to Mr C during the telephone financial assessment in February 2019 that it would have to reassess the situation from 2015 and this would increase Mr D’s contribution. I also accept it sent Mr C copies of the financial assessments before sending 43 pages of revised invoices.
32. However, given the length of time, the amounts involved and Mr C’s vulnerability, I think it would have been more helpful to have sent him an individual letter explaining what had happened and why, rather than just a series of calculations. This would have been in accordance with the requirements of the guidance to provide clear and accessible information explaining how and why the charges have arisen. But I note the letter sent to the solicitor in April 2019 gives a full explanation and as this was provided shortly after the invoices were sent, I do not consider any further action is required here.

failed to allow Mr D’s contribution of 50% of the household bills in the assessment

33. I accept that Mr C said in 2019 that he paid of all the bills. On the face of it this is true, but it fails to acknowledge the scenario that Mr D contributes an amount of cash every week equivalent to 50% of those costs. The Council failed to ask any further questions or establish the true arrangements, even though it would be unusual for an adult with independent means to have no housing costs at all. This was fault.
34. Since 2019 the Council has been intransigent in its insistence that Mr C needs to provide not only evidence of the payments but evidence of Mr D’s liability for those payments. The reality is that the tenancy is in Mr C’s name, but he cannot afford the rent and other bills without Mr D’s contribution. This is not an unusual scenario, and the Council should have taken more action to explore how this situation could be resolved.
35. I have also considered that councils adopt the concept of a notional contribution to housing costs when determining housing benefit claims for households with non-dependent adults. I realise this is a completely different area of law, but it indicates that this scenario exists and is accounted for in other areas.
36. I note the guidance suggests councils could determine housing costs through discussion with a person and consideration of average levels for household types. There is no evidence the Council has done this or explored ways it could determine how the bills are actually paid. The solicitor first asked for a meeting in October 2019. The Council has only offered to arrange one in July 2022. This is fault and has denied Mr C the opportunity, with the help of his solicitor, to fully explain his situation in person. The Council has also failed to consider the impact of Mr C’s age and health problems.
37. This impasse has continued for far too long. Both the solicitor and the Council have taken a long time to respond to each other’s correspondence and despite the Council mentioning referral to us as the next stage, the issue has not been dealt with through the complaints procedure or come to us to consider until this year. This is fault.

failed to include adequate amounts in the Disability-Related Expenditure for laundry and clothing costs

38. Mr C has not provided clear evidence of the amount of laundry he does for Mr D or the amount he spends on extra clothing. The Council has included some for these items but does not consider sufficient evidence has been provided to justify any higher allowance or to resolve some previous contradictory evidence.
39. While I accept the Council needs some evidence on which to base its calculations, as with the consideration of the housing costs I do not think the Council has taken sufficient action to fully explore the situation with Mr C; for example, by offering a face to face meeting or suggesting ways he could log, record and collate the required information. This is fault.

failed to provide Mr D with adequate support to manage his direct payments

40. I have not seen evidence to suggest that this has been a problem. The issue appears to be more with the declaration of income and proof of expenses in respect of the financial assessment.

failed to carry out a statutory carer’s assessment of Mr C

41. The Council has provided evidence that Mr C was referred to an organisation for a carer’s assessment in June 2019 and November 2021. I have no further evidence on the outcome of these referrals so I cannot reach a conclusion.

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Agreed action

42. I welcomed the Council’s offer to meet Mr C. This has now taken place and reduced the outstanding debt to approximately £3300.
43. In recognition of the injustice caused to Mr C by the Council’s failure to offer a meeting or consider the matter as a formal complaint, I recommended the Council (within one month of the date of the final decision) also pays Mr C £300.
44. The Council has agreed to this. It requested the payment be deducted from the outstanding debt. I have not agreed to this because the payment is to Mr C to recognise the significant stress he has experienced and I did not think it was appropriate for it to be used to pay Mr D’s debt. However it is open to Mr C to use the money to reduce the debt if he wishes.

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Final decision

45. I consider this is a proportionate way of putting right the injustice caused to Mr C and Mr D and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman