Summary: The Council took too long to review Mr B’s financial assessment which allowed arrears to accrue. It also did not properly consider whether he could afford to pay the arrears. The Council has agreed to take the action recommended below.

The complaint

1. Mrs Y complains on behalf of her adult son, Mr B. She says the Council:
• has increased Mr B’s contribution to his care costs despite him remaining on Universal Credit since the previous assessment. It is now demanding payment of arrears that have built up between 2019 and 2021 despite Mr B making regular payments as required.
• did not allocate all of his payments to the correct account and Mrs Y had to supply various information several times, before the Council properly allocated payments he had made.
2. Mrs Y says that despite the missing payments now being found, Mr B’s arrears have not decreased and the Council still has not properly explained how the account got into arrears.
3. Mrs Y and Mr B say the Council’s shortcomings have caused them distress and frustration.

Back to top

The Ombudsman’s role and powers

4. 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)
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)

Back to top

How I considered this complaint

6. I considered the information provided by Mrs Y and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement, and I have considered the comments received before issuing my final decision.

Back to top

What I found

The law and guidance

7. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
8. The Guidance says the council must carry out a financial assessment and that it must “regularly reassess a person’s ability to meet the cost of any charges to take account of any changes to their resources. This is likely to be on an annual basis, but may vary according to individual circumstances. However, this should take place if there is a change in circumstance or at the request of the person”. (Care and Support Statutory Guidance, paragraphs 8.16 and 8.17)
9. The Guidance also says that people in a care home will contribute most of their income, excluding their earnings, towards the cost of their care and support. However, a council must leave the person with a specified amount of their own income so that the person has money to spend on personal items such as clothes and other items that are not part of their care. (Care and Support Statutory Guidance, paragraph 8.35)

What happened

10. Mr B is disabled and lives in a care home. He is in receipt of benefits. His mother, Mrs Y took over managing his finances in 2019. At that time, Mr B received Employment Support Allowance. The Council completed a financial assessment in September 2019 and told Mr B and Mrs Y how much he would be charged for his care each week.
11. In October 2020, Mr B stopped claiming Employment Support Allowance and started claiming Universal Credit. This was at a slightly higher amount. From April 2002 to October 2021, Mr B received an increase to his benefits due to COVID-19 rules.
12. In November 2021, Mrs Y told the Council that Mr B’s benefits have changed. In January 2022, the Council completed a review of Mr B’s financial assessment. It found that as Mr B’s benefit income had increased, he should have been paying more for his care charges. The Council wrote to him saying that it had backdated the higher charges to when this should have taken effect in October 2019. This meant that there were arrears on the account.
13. Mrs Y was shocked to find the arrears and asked the Council how this had happened. The Council sent her a breakdown of Mr B’s account and asked Mrs Y to pay £100pcm on top of the new care charges. Mrs Y told the Council he could only afford £10 per week.
14. The Council invoices Mr B every four weeks, but he gets his benefit payments monthly. This made it difficult to pay by direct debit and so Mrs Y paid the invoices manually from his account. Some of these payments did not have the correct reference and so were paid to a suspense account rather than Mr B’s social care account. Mrs Y does not know why some payments did not have the correct reference and some did, as she paid these in the same way each month.
15. The Council says it checks the suspense account weekly and allocates payments where it can. Also, a missed payment will show on Mr B’s invoice for Mrs Y to check and query.
16. These missing payments increased Mr B’s arrears further. The Council found payments Mrs Y had made in March 2021 which it reallocated to Mr B’s account. It also explained to her that not all invoices had been paid. It again sent Mrs Y breakdowns of the account and tried to explain which payments had been missed. It told her to send details of any other payments she might have made that had not been allocated to the account.
17. The Council can consider an individual person’s circumstances where these mean they cannot afford payments. The person (or their representative) needs to appeal against the charges. Mr B and Mrs Y have not appealed.

Was there fault by the Council causing injustice to Mr B and Mrs Y?

18. There was fault by the Council. It should have completed a review of Mr B’s financial assessment sooner. It should aim to do this annually, and I appreciate that sometimes the Council’s resources might not allow this to be completed on time. However, there was over two years between the financial assessments and this was too long.
19. I appreciate that Mrs Y could have notified the Council sooner that Mr B’s benefit income had changed. However, had the Council completed a review on time, it would have reassessed his charges sooner, and the arrears would not have been so large.
20. There is no evidence that the Council properly considered what Mr B can afford to pay towards the arrears. He is on a very limited income and the Care and Support Statutory Guidance says that the Council must make sure that Mr B’s income does not fall below the personal expenditure allowance. Although Mrs Y proposed £10 per week, I would have expected the Council to ask for income and expenditure details so that it could propose an affordable repayment plan. Its failure to do so means that it is not sure that it has left Mr B with sufficient funds for his everyday expenses.
21. Mr B is on a very limited income and it hard for him to repay arrears. The situation has caused him and Mrs Y distress and confusion.
22. There was no fault by the Council when it did not allocate some payments to Mr B’s account. I can see that it is confusing that the Council invoices four-weekly and this does not fit with when Mr B’s benefit is paid. However, it is for Mrs Y, as Mr B’s representative, to manage the account. Mrs Y may need to seek the bank’s help with making sure the reference is included on each payment. I cannot see that the Council asked Mrs Y multiple times for the same information or failed to resolve unallocated payments.

Back to top

Agreed action

23. The Council has agreed that it will within one month of this decision show the Ombudsman that it has:
• Apologised to Mrs Y for the faults I have identified;
• Amended Mr B’s account so that it backdates the increased charges to 12 months before the assessment (around January 2020) to reflect that it should have done the assessment sooner;
• Completed a proper assessment of what Mr B can afford to pay so that it can agree an affordable payment plan towards the arrears with Mrs Y; and
• Shared this decision statement with the relevant staff.
24. The Council has also agreed that it will within three months of this decision show the Ombudsman that it has:
• Reviewed how it considers payment arrangements so that it satisfies itself that these are affordable and do not allow the person’s available income to fall below the personal expenditure allowance.
• Reviewed and where needed updated its internal guidance on this and shared this with relevant staff.

Back to top

Final decision

25. I have completed my investigation. There was fault by the Council causing injustice to Mr B and Mrs Y.

Back to top

Investigator's decision on behalf of the Ombudsman