Summary: Ms C complains the Council failed to properly assess her charges for support within her home and provide her with a direct payment to meet her eligible needs. The Council is at fault for making decisions without considering Ms C’s individual situation both about her charges and her direct payment. This has caused uncertainty about whether Ms C’s charge and direct payment is correct. The Council has agreed to apologise to Ms C and pay her £250 for the uncertainty and avoidable time and trouble this has caused her. It will also remind staff and if necessary provide training about not applying blanket policies.

The complaint

1. The complainant who I refer to as Ms C, complains the Council has wrongly assessed her care charges and not properly considered her financial circumstances or all her Disability Related Expenditure (DRE). Ms C also complains the hourly rate the Council currently allows for Personal Assistants (PAs) is too low and she has to pay extra for her PAs.
2. Ms C says as a result of the Council’s decisions she has considered reducing her care package as she is finding it financially difficult. Ms C says the Council’s actions have caused her emotional distress.

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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 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. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced new and often updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
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 with Ms C and considered information she provided. I asked for information from the Council including questions about its actions and processes. I considered:-
• Council’s “Charging for Care and Support Policy” 2016;
• Ms C’s charging assessments and appeals;
• Care Act 2014 and the associated, Care and Support Statutory Guidance (CSSG) and Care and Support (Charging and Assessment of Resources) Regulations 2014.
7. Ms 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

Background information

8. The Council provides support to Ms C to meet her assessed eligible needs in the form of a direct payment. A direct payment allows Ms C to employ her own carers to support her.

What should have happened

9. 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) 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.
10. 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) Paragraph 8.2 of CSSG says councils should “ensure that people are not charged more than it is reasonably practicable for them to pay.”
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.
12. Everyone must receive a personal budget as part of the care and support plan if the local authority is meeting their eligible needs. The personal budget must be sufficient to meet eligible needs.
13. Direct payments are a means of paying some, or all, of the personal budget to the person to arrange and pay for their own care. CSSG says councils should review direct payments every 12 months.

What happened

14. On 9 February 2022 the Council wrote to Ms C saying it was removing a weekly discretionary amount of £20 per week which it had agreed and applied from March 2021. It said it had agreed this for one year only. It also refused to allow acupuncture as a DRE. It provided no further explanation about its decision but invited Ms C to appeal. Ms C’s weekly assessed charge increased from £19.24 to £33.99 which included an annual uplift.
15. Ms C appealed the Council’s decision on 18 February making the following points:-
• the Council was applying a standard uplift to benefits but not on the general living allowance/minimum income guarantee;
• the minimum wage had increased by £1.63 per hour over the last three years but the Council’s hourly rate had not changed, as a result Ms C could not get a PA at the Council’s rate;
• discretionary payment decisions were not person centred;
• Ms C needed the acupuncture for pain relief and a Council suggestion to speak to the GP was inappropriate.
16. The Council responded to the appeal letter. It:
• provided the MIG levels and explained they were government set and had not increased for several years;
• explained £11.50 was a reasonable rate to pay for carers and it was one of the higher paying councils in the area;
• said the finance team did not make decisions on their own but with liaison with the social care team;
• suggested a referral to the Chronic Pain Management Services (PMS) for advice and alternative treatment;
• accepted it did not complete an annual review of care due to COVID-19 but agreed to carry out a review.

Was there fault causing injustice?

17. My role is to consider whether the Council has made its decisions properly, not to decide Ms C’s charge, direct payment amount or what the Council should accept as DRE.
18. The government sets the MIG. While the Council has the power to increase disregarded income it does not have to. When the Council completes a financial assessment it considers the amount above the MIG discounting any DRE. I therefore find no fault in the yearly automatic uplift in line with the increase in benefits as the available income has increased. The Council told Ms C of the uplift by letter which also included an offer to contact the Council with any queries or changes which may affect the charge.
19. I also do not find the Council at fault for failing to consider acupuncture as DRE. This is because it made a reasoned decision that acupuncture was a health need. The NHS had both previously assessed and paid for acupuncture sessions for Ms C. The suggestion by the Council for Ms C to get further advice from the NHS is therefore suitable in these circumstances.
20. In response to a draft decision Ms C says the Council should have used her support plan as a starting point for considering her DRE and her acupuncture. My view remains as even if the Council considered an updated support plan it is more likely than not it would still need further health information before reaching a decision. I suggest that as part of the review recommended below the Council considers any information Ms C provides from the NHS about the need for acupuncture.
21. I consider the Council is at fault for failing to properly consider whether Ms C could reasonably be expected to pay some/all of the charge. This is fault and not in line with the overarching principles of charging within CSSG.
22. The Council gave Ms C a discretionary allowance of £20. It removed this without a review or properly explaining its decision to end the allowance. This is fault.
23. The Council also failed to consider whether £11.50 is enough for Ms C to employ carers to meet her needs. It has applied a blanket hourly rate without considering Ms C’s individual needs and whether her personal budget is enough to employ suitable carers. This is fault and not in line with CSSG.
24. The Council failed to carry out an annual review and said this was due to COVID-19. However the Council did not use easement powers to limit its duties and was therefore under an obligation to carry out reviews. I welcome the Council’s offer to complete a review, however the failure to complete a review earlier is fault.
25. Because of these faults Ms C has the uncertainty of not knowing whether care charges and the personal budget she receives is enough to meet her needs.

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Agreed action

26. I have found fault in the actions of the Council which has caused Ms C injustice. I consider the following actions are suitable to remedy Ms C’s complaint:-
1. apologise to Ms C for the failures I have identified in this statement in particular the failure to properly consider the direct payment hourly rate and Ms C’s financial circumstances;
2. pay Ms C £250 for the uncertainty and avoidable time and trouble caused by the Council’s actions;
3. complete a financial assessment which includes all Ms C’s income and outgoings and consider whether the Council’s charge is reasonably practicable for her to pay. If relevant the Council should backdate any changes to the charge;
4. as part of a review consider whether Ms C’s personal budget is enough for her to employ PAs to meet her assessed eligible needs. If following the review the Council finds the budget is insufficient to consider reimbursing the additional costs Ms C has paid;
5. remind staff about completing regular reviews;
6. remind staff and if appropriate provide training about the Council’s discretionary powers when charging for care;
7. remind staff and if appropriate provide training about the Council’s duty to ensure personal budgets are enough to meet eligible needs and not to apply blanket policies about direct payment rates of pay.
27. The Council should complete (a) to (d) within one month of the final decision and (e) to (g) within three months of the final decision.

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Final decision

28. I have found fault by the Council which has caused Ms C injustice. On the basis of the agreed action above I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman