Summary: Ms X complained the Council delayed completing her financial assessment and did not give clear reasons for its outcome causing distress and financial difficulties. We found the Council at fault for its delay and poor communications. We recommended the Council offer to meet with Ms X to address any remaining queries and take action to prevent recurrence.

The complaint

1. Ms X complains the Council delayed completing her financial assessment and did not give clear reasons for its outcome. She has suffered distress and is now in debt leaving her unable to afford the care she needs.

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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. 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)
4. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
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 spoke to Ms X and I reviewed documents provided by the Council and Ms X.
7. I gave Ms X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Contracting out services

8. Under section 75 of the National Health Service Act 2006 an NHS body and a local authority may make arrangements in how they exercise their respective functions if it will improve their services. This means an NHS body may delegate some of its functions to a local authority and a local authority may delegate some of its health related functions to the NHS body.
9. Paragraph 5 of section 75 makes clear that any arrangements do not affect the liability of either body for the exercise of any of their functions.
10. In this case an NHS body is carrying out adult social care functions on behalf of the Council. However, the Council remains liable for meeting its statutory duties and this complaint is properly brought against the Council.

Financial assessment

11. The Government publishes “Care and Support statutory guidance”. This tells councils what they should do to meet their duties under the Care Act 2014. I have referred to this statutory guidance below.
12. Where a council has decided to charge for care, it must carry out a financial assessment of what the person can afford to pay. Once complete, it must give a written record of that assessment to the person. It should explain how the assessment has been carried out, what the charge will be and how often it will be made, and if there is any fluctuation in charges, the reason.
13. Councils should ensure there is sufficient information and advice available in a suitable format for the person’s needs, to ensure they are able to understand any contributions they are asked to make.
14. A person may wish to make a complaint about any aspect of the financial assessment or how a council has chosen to charge. A council must make clear what its complaints procedure is and provide information and advice on how to lodge a complaint.

Disability related expenditure

15. The statutory guidance sets out how a council should carry out a financial assessment. It explains how a council should assess income and expenses. It does not say councils should take account of any debts a service user may owe when working out what they can afford to pay.
16. Disability related expenditure (“DRE”) is a reference to those expenses incurred due to a person’s disability. A council must take DRE into account when carrying out a financial assessment.
17. The statutory guidance lists items that councils should consider as DRE. However, this list is not exhaustive and a council should include any reasonable additional costs directly related to a person’s disability.
18. It will be up to the council to reach its own judgement on whether an item is directly related to a person’s disability. The Ombudsman cannot find fault where the council has followed a proper decision making process.

Charging principles

19. Statutory guidance says the council’s approach to charging for care and support needs should:
• ensure that people are not charged more than it is reasonably practicable for them to pay
• be comprehensive, to reduce variation in the way people are assessed and charged
• be clear and transparent, so people know what they will be charged
• promote wellbeing, social inclusion, and support the vision of personalisation, independence, choice and control
• support carers to look after their own health and wellbeing and to care effectively and safely
• be person-focused, reflecting the variety of care and caring journeys and the variety of options available to meet their needs
• apply the charging rules equally so those with similar needs or services are treated the same and minimise anomalies between different care settings
• encourage and enable those who wish to stay in or take up employment, education or training or plan for the future costs of meeting their needs to do so
• be sustainable for councils in the long-term
20. Alongside this, councils should ensure there is sufficient information and advice available in a suitable format for the person’s needs, in line with the Equality Act 2010 to ensure that they or their representative are able to understand any contributions they are asked to make. Councils should also make the person or their representative aware of the availability of independent financial information and advice.

What happened

21. The Council delegates its adult social care functions to an NHS body who in turn contracts out the work to a third party. As the Council retains overall responsibility for meeting its duties for ease I have referred simply to the Council throughout this decision.
22. Ms X says she paid £2.50 per week towards her care. Her latest care plan (of January 2022) shows she needs 12 hours per week support from a personal assistant to help her with meals, personal care, using her home and accessing the community. This is because she suffers from black outs and is at risk of falling unexpectedly.
23. The Council carried out a financial assessment with Ms X on 30 January 2020. It has provided a brief note of this visit which refers to a discussion on DRE. The Council has not provided any other evidence to show it informed Ms X at this time how it would decide on DRE or what items this may include. Ms X signed a declaration form to confirm she had been told she could seek independent financial advice and that she would need to provide receipts in support of items claimed as DRE.
24. On 3 March 2020 the Council provide Ms X with the outcome of its financial assessment. This said her contribution was now £43.76 weekly. The document sets out her income and deducts amounts for DRE. It also lists DRE put forward by Ms X but not deducted because she did not provide a receipt and the item was not referenced in her care and support plan.
25. The Council’s letter does not otherwise explain why Ms X’s contributions are higher than previously. The letter says information on how to complain is available at a freepost address.
26. Ms X called the Council on receipt of its letter and explained she had forgotten to send in receipts. The Council asked for these so it could consider them.
27. On 25 March 2020 the Council notified Ms X of the outcome of her financial assessment, following the receipts. This said her contribution was now £24.29 weekly. The documents set out the DRE accounted for. There is no explanation as to why this amount differed to the previous £2.50 per week. The letter says information on how to complain is available at a freepost address.
28. Ms X called the Council on the same day asking for a breakdown of how the award was calculated. The Council gave her contacts details to appeal and said the letter included a breakdown.
29. Ms X says her keyworker sent her appeal in the week commencing 13 April 2020.
30. On 5 May 2020 the Council spoke to Ms X’s key worker who asked if items from previous assessments could be included. The Council advised they could but it must see receipts to show Ms X was still purchasing these items. It also advised it had previously deducted costs for when she moved home including removal costs etc. and so could not include these on the assessment for this year.
31. On 21 May the Council told Ms X it would hear her appeal on 16 July.
32. The Council says relevant staff were then absent.
33. An internal Council email of 21 August says the Council would like a new financial assessment completed to be considered at appeal. The officer notes that the social worker should not have decided on DRE rather a manager or panel should have decided.
34. In September the Council told Ms X it wanted to do another financial assessment. It sent her a letter asking for evidence in support. I note this gives examples of what may be considered DRE.
35. On 4 November Ms X complained that:
• She did not understand the increase in charges.
• It was unfair for the Council to assess her before considering her appeal.
• There had been poor communications.
• She had suffered distress and uncertainty.
• She could not afford to pay the increased amount and had an increasing debt while she awaited the appeal.
36. The Council said when looking at Ms X’s appeal it raised issues with the financial assessment completed and as part of the initial appeal checks asked that a new financial assessment be undertaken. I note it did not make clear if this was a formal complaint response or how to escalate if Ms X remained unhappy.
37. Ms X asked what issues there were with the previous assessment. I have not seen evidence the Council addressed this.
38. On 26 November 2020 the Council started another financial assessment. Its records of the meeting with Ms X show it discussed each of her requests for DRE and explained why there were not DRE or where it needed evidence in support.
39. The Council’s case records show it awaited receipts from Ms X and then the social worker took an initial view on 17 December. This was then passed to a manager for their consideration.
40. The Council has not explained why further action was not taken at this point. In complaint correspondence it suggests this was because a review of Ms X’s care needs was necessary. However, I have not seen any evidence this was decided at the time. I have not seen evidence the Council updated Ms X or any explanation as to why this review did not then take place until May 2021.
41. The Council’s records show it reviewed Ms X’s care plan on 24 May 2021. No further action was taken regarding the financial assessment until 11 August 2021. At this time the social worker again asked managers for advice.
42. The Council’s chronology does not explain any further action or reasons for delay from August 2021. In its complaint response the Council said it met with Ms X on 9 November and then passed the case to its appeal panel to consider on 25 November 2021.
43. The Council’s chronology does not explain any further action or reasons for any delay from November 2021. It told Ms X the appeal outcome on 16 March 2022 and provided a complaint response on the same date. I note the appeal outcome provides a breakdown of figures including the income taken into account and any expenses deducted.
44. The Council’s letter of 16 March 2022 is said to be a response to Ms X’s complaint of 13 October 2021. In summary the Council:
• Explained what DRE were and enclosed a charging handbook which further explained its charging policy and decisions on DRE.
• Said it did not cancel the appeal but felt it was dealt with best by a reassessment.
• The appeal was due to be heard on 16 July but a relevant staff member went off work. It was then decided to put the appeal on hold pending a reassessment. It apologised that it did not tell her this. It now had a process in place to ensure it updated service users in similar circumstances.
• In carrying out the financial reassessment there were queries about DRE which resulted in a care review being carried out on 20 May 2021. There was then a breakdown in communications and it did not complete the financial assessment. It apologised for this.
• It offered a payment plan to help her clear her debt.
• Following reassessment her contributions had increased. This was because she was previously claiming cleaning expenses that she no longer had.
• It gave reasons for the panel’s refusal of DRE on specific items, namely that there was not an identifiable need arising due to her disability. It noted that it had previously given DRE for these although they did not meet the criteria.
• Her contribution had now increased from £24.29 to £94.37 per week. It acknowledged this was a significant increase and so it would not backdate this to override the incorrect assessment of 5 March 2020. Rather this would start from 25 April 2022.
• It apologised for the delays, upset and distress.
• It referred her to the Ombudsman.
45. Ms X complained to the Ombudsman that she could not now afford the care she needed. She had built up a large debt because of the Council’s delay that she could not afford to repay. And she felt the Council had still not explained its decisions on DRE.
46. In response to enquiries the Council added that it was now carrying out monitoring to ensure it did not overlook a financial assessment again, as it did after the May 2021 care plan review.
47. In comments on a draft decision the Council:
• Outlined times it discussed DRE with Ms X from 2015 to 2018. Since then it had a conversation in January 2020 (as referred at paragraph 22) and gave details in a letter in September 2020 (as referred at paragraph 33).
• Said it met with Ms X on 28 June 2022 to go through the DRE and her queries in detail.
• Said it arranges cover when staff are absent. It failed to tell Ms X that her appeal was on hold but this was an oversight rather than an issue with staff cover.
• Regarding its complaint handling, now provided file notes made by its complaints officer to show Ms X was kept updated at agreed intervals. The file notes also account for the time from the completion of the financial assessment to when the complaint response was signed off on 8 February 2022 to when it was shared on 16 March 2022. The file notes show:
1. 13 September 2021 Ms X complained.
2. 21 September Council agreed a statement of complaint with Ms X and agreed to update her on or about 29 November.
3. 15 November the Council decided to consider the appeal before completing the complaint response.
4. The Council heard the appeal on 25 November.
5. On 29 November the Council updated Ms X.
6. The Council expected to finalise its response in early December but decided it would not share this with Ms X until the New Year when a visiting officer and support officer could visit her to go through this with her.
7. The Council updated Ms X mid December.
8. The Council finalised its response in early January but this then went through internal checks through February.
9. The Council then sought to arrange a date in March that it could visit Ms X to go through the response and appeal outcome.
• Said it has a clear and accessible complaints service and procedure. It has a phone number, email address, freepost address and a dedicated page on its website. It can also offer face to face meetings with prior agreement. It is the letter that is at fault for only offering one means of contact. Now this has been highlighted, it will work with staff to correct it.
48. In comments on a draft decision Ms X said:
• She feels she is in the same position; she needs care but is unable to pay the required fees, so she is currently left with no care and her health and wellbeing is declining as a result.
• She has not benefitted from the Council’s fault. If it had increased her charges earlier she would have stopped her care earlier as she could not afford it.
• She does not agree with the Council’s appeal decision of March 2022; she feels priced out of care and the situation is unfair.
• She does not understand how the assessment process is completed annually and even if her circumstances do not change the result of the assessment does and each time she is expected to pay more.
• The Council should list all DREs at time of assessment, rather than simply ignoring or disallowing them. She expected the Council to record all her DREs and why any were dismissed. However, the following DREs were not listed or responded to:
1. having a haircut
2. incontinence products
3. bedding
4. hobbies or crafts
5. mobility scooter
6. meal delivery
• She is concerned her care charges will increase further at her next assessment.
• She considers she would not be in this position if the Council had completed her appeal sooner and acted fairly.

Findings

49. There is a lack of evidence to show the Council gave Ms X adequate information about DRE at the time of her financial assessment in January 2020. I consider the Council was not clear and transparent on its charging. This amounts to fault. Ms X suffered distress and uncertainty as a result. This is injustice. While the Council later responded to queries and provided some further information about DRE, it did not provide a copy of its charging handbook until the very end of its complaints process. And, Ms X remained confused about its decision making on charging. The Council’s comments about times it spoke to Ms X in past years do not affect my findings here. And while the Council says it has since met with Ms X to discuss her queries, she remains confused. I will therefore make a recommendation to address this.
50. The Council has provided no good reason for its delay in considering Ms X’s appeal from May 2020 to August 2020. That staff were absent is not a good reason. And it was not until 21 August that the Council decided a reassessment was necessary. This delay amounts to fault. Ms X was put to avoidable distress and uncertainty as a result. This is injustice. The Council’s responses to the Ombudsman suggests it does not see any fault here. However, the lack of action from May to August amounts to fault. I will therefore recommend action to prevent recurrence.
51. Internal correspondence shows the Council did not follow its policy in completing the financial assessment for Ms X in March 2020. This is fault. This caused further delay in its consideration of Ms X’s appeal because it meant the Council decided to reassess. Ms X was put to avoidable distress and uncertainty as a result. This is injustice. I note the Council has sent a memo to staff reminding them of the process since.
52. There was a delay in progressing the reassessment from September to November 2020 however on review of the Council’s case notes I find this was due to the time take to find a suitable date with Ms X. I therefore find no fault.
53. The Council has provided no good reason for its delay in progressing the financial reassessment from December 2020 to November 2021. This delay is fault. Ms X was put to avoidable distress and uncertainty as a result. This is injustice. I note the Council has put monitoring in place to prevent recurrence.
54. The Council has provided file records detailing actions it took to progress Ms X’s complaint and her appeal from November 2021 up to March 2022. I find no significant delay between actions.
55. I consider the Council’s appeal outcome letter and complaint response of 16 March 2022 provided clear reasons for its decision on DRE and how it reached its decision following the financial reassessment. There is no evidence of fault in the Council’s decision making process.
56. Ms X has since told the Ombudsman the Council did not address each item of DRE requested. However, it appears the Council has not yet had chance to respond to this complaint. Now that I have drawn this to the Council’s attention, I expect it to contact Ms X directly to address this.
57. The Council is not bound by previous decisions; that it previously allowed items as DRE does not mean there is fault in its recent decision.
58. The Council’s standard letter requires services users to send a postal letter simply to find out where to complain. This does not demonstrate a clear and accessible complaints procedure. This is fault. Ms X contacted the Council by phone in any event, but I will make a recommendation to prevent injustice to others in future.
59. Because of the faults identified above Ms X had suffered avoidable distress and uncertainty. She had an unexpected increase in charges that she had not planned for and she now feels unable to afford her care. However, if the Council had reached its decision of March 2022 in March 2020, Ms X would have faced the same increase and she would have paid a higher sum for longer. The Council has not backdated its assessment outcome meaning Ms X has not paid £7000 in charges that would have been due. This means Ms X has financially benefited from the Council’s fault and no further financial remedy is warranted. I note the Council had already provided an apology to Ms X. I consider no further apology is due.
60. I note Ms X says she would have cancelled her care package in March 2020 had the Council reached its decision then. However, it remains that she has benefitted from £7000 worth of care over that period.
61. I acknowledge Ms X’s comments that she remains unable to afford her care. However, my role is to investigate whether the Council followed a proper decision making process regarding her care charges. I am satisfied it did. It is not within my remit to provide advice and support. Ms X may wish to seek advice from an independent third party or Citizens Advice.
62. I note Ms X has further queries about the financial assessment process. She should raise these with the Council in the first instance.

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Agreed action

63. To remedy the injustice identified above the Council should carry out the following actions within one month of the date of my decision:
• Offer to meet with Ms X to address her queries about charging and DRE.
64. Within three months:
• Amend its financial assessment outcome template letters to ensure these provide contact details for who to complain to;
• Remind staff working in Adult Social Care (“ASC”) of their duty to provide clear and transparent information on charging in a format suitable for the service user to understand;
• Ensure ASC staff are aware of the Ombudsman’s expectation that they act without undue delay; a lack of action over a number of months is likely to amount to fault.
65. The Council has accepted my recommendations.

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Final decision

66. I found the Council at fault for its delay and poor communications. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman