Summary: Miss X complained the Council had asked her father, Mr Y, to make contributions to his care charges that she said were unfair and which he could not afford. We found fault with the Council’s poor customer service and it agreed to provide a remedy for the unnecessary time and trouble caused as a result. But we did find fault with the approach taken by the Council towards calculating what Mr Y should pay towards his care.

The complaint

1. I have called the complainant ‘Miss X’. She complains on behalf of her father ‘Mr Y’. Miss X says that Mr Y should not have been asked to pay, and cannot afford to pay, contributions the Council assessed he should pay towards his social care between November 2018 and December 2021.
2. Miss X says the demands for payment have caused distress to both Mr Y and to her.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, 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. 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)
6. 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

7. Before issuing this decision statement I considered:

• Miss X’s written complaint to the Ombudsman and any supporting information she provided;
• information obtained from the Council in response to my written enquiries;
• relevant law and guidance as referred to in the facts below.

8. I also gave Miss X and the Council a chance to comment on a draft version of this decision statement. I took account of any comments made in response before finalising the statement.

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What I found

Relevant law and guidance

9. A council has a duty to arrange care and support for those with eligible needs. It can meet those needs in a variety of ways including providing care to someone in their own home. After a council has completed a needs assessment it can choose to charge someone towards the cost of that care. 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)
10. 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.
11. Councils have no power to assess couples according to their joint financial resources. A council must treat each person individually (see Care & Support Act Statutory Guidance paragraph 8.8).
12. In carrying out a financial assessment for someone who receives care at home, a council must disregard “any housing-related costs which the adult is liable to meet in respect of the adult’s main or only home” (see Care & Support (Charging and Assessment of Resources) Regulations 2014 – Schedule 1 para 2(1)). Payments towards a mortgage on a home are considered a ‘housing-related’ cost.
13. People receiving care and support other than in a care home need to keep a certain level of income to cover their living costs. 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, at its discretion, allow people to keep more than the MIG.
14. 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.

Chronology of key events

15. The events covered by this complaint began in November 2018 and ran until December 2021. The significance of the November 2018 date is that this is when Mr Y first began receiving care at home (where he lived with his wife – Mrs Y) to support with his social care needs, arranged by the Council. While the significance of December 2021 is twofold. First, during this month Mrs Y sadly passed away. Second, this is also when a mortgage that is at the crux of this complaint came to an end. Mr Y’s circumstances therefore changed at that point.
16. While Mr Y first received care at home at the end of November 2018, this was only for a short time as he cancelled the arrangement in February 2019. Following a stay in hospital which ended in January 2020, Mr Y again began to receive care at home arranged by the Council. He has continued to receive care at home subsequently.
17. Throughout the events covered by the complaint therefore, Mr Y lived with Mrs Y in their own home. Miss X, their daughter, maintains her own home elsewhere. The land registry recorded the home as owned by Mrs Y and Miss X.
18. The mortgage at the crux of this complaint was taken out around 2011, arranged through a broker. Mr Y was already at that time, over seventy years old. Miss X says that Mr Y could not therefore get a mortgage in his name. However, the broker took account of Mr Y’s income when deciding if the mortgage was affordable and assumed he would contribute towards it. The mortgage was put in the name of Mrs Y and Miss X.
19. I understand bank statements show that during the events covered by this complaint payments towards the mortgage came from Mr Y’s account. This also showed Miss X transferring a regular monthly payment into the account equivalent to just over 50% of the mortgage payments.
20. The Council first carried out a financial assessment to decide what Mr Y should pay towards his care in January 2019. It found Mr Y should pay around £138 a week. The details of the assessment, sent to Mr Y, showed the Council first took account of his income. It then subtracted from this:

• contributions towards council tax and water rates (equivalent to 50% of the liability for each);
• money paid as disability living allowance towards his mobility needs;
• £15 a week towards his disability related expenses;
• the minimum income guarantee figure.

21. Miss X challenged the assessment on receipt. She asked why, in its calculation, the Council had not deducted payments Mr Y made towards the mortgage and various personal debts before deciding what he should pay towards his care.
22. The Council’s initial reply, from a finance officer I will call ‘Officer B’, said that it could not take account of the mortgage payments made by Mr Y as he had “no interest in the property”. While it said payments made towards credit cards were not an essential household cost.
23. Miss X asked if she could appeal the Council’s assessment. Officer B told her she should submit an appeal to him. He would then forward this to his line manager. Miss X duly followed Officer B’s advice and submitted an appeal in April 2019. She explained more about the mortgage payments and that it was Mr Y who paid these.
24. Officer B replied. He said that Miss X should provide more detail of any disability related expenses Mr Y had. But that he had already explained the Council could not take account of mortgage costs as Mr Y had “no interest” in the home. Officer B invited Miss X to complete an income and expenses form. When Miss X did not return this the Council considered the matter closed.
25. It was not until May 2021 that Miss X again challenged the methodology being used by the Council to assess what Mr Y should pay towards his care. This time she dealt with another finance officer, whom I will call ‘Officer C’. Miss X explained again the circumstances which led Mr Y to pay towards the mortgage in Mrs Y and Miss X’s name. Officer C told Miss X the Council “would need to see evidence the mortgage company in some way included your father’s income in their initial assessment”, in order to include what he paid towards housing costs in its assessment.
26. Miss X said she would contact the mortgage lender. Later the same day as her contact with Officer C, Miss X explained the lender had told her it did not have access to the paperwork submitted by the broker, but Miss X said she would try to pursue this. Miss X also put in writing more detail about her parent’s circumstances and confirmed she paid money into their account each month to help them meet the mortgage cost.
27. In June 2021 (twice) and in July 2021 Miss X sent emails to the Council asking if it had decided whether to revise the money it asked her father to contribute towards his care. In early August 2021 Officer B replied for the Council. He said the Council had previously clarified, in May 2019, its “position regarding the mortgage”. But he invited Miss X to provide details of any additional disability related expenses Mr Y had. He sent her an income and expense form to assist. It is evident at this point Miss X had submitted bank statements (which the Council no longer has copies of) as Officer B said that her bank statements did not assist in reviewing Mr Y’s assessed charge.
28. In late August 2021 Miss X submitted an income and expense form. The Council acknowledged receipt but said it could not open the form. Miss X heard nothing further until she chased a reply the following month. Shortly after that the Council issued a revised financial assessment. This found Mr Y should pay around £160 a week towards his care. The assessment followed the same methodology as that in January 2019 (see paragraph 20 above).
29. Miss X remained unhappy as the Council was still not taking account of Mr Y’s payments towards the mortgage in its assessment. She asked to appeal. Officer B said he would consider her appeal, clarifying the decision made in September 2021 was taken by another officer in the service.
30. In November 2021 Miss X submitted a further appeal therefore. She again set out the circumstances surrounding the mortgage being taken out on the property and why Mr Y paid towards that. She argued the Council should take account of these contributions before deciding what he should pay towards his care. She also asked the Council take account of his overall financial position, with multiple personal debts. Miss X said Mr Y simply could not afford the assessed charge.
31. Miss X received no response to her appeal and so in March 2022 she complained. The Council replied to her complaint in April 2022. Its response:

• set out the chronology of Miss X’s communications with the Council in 2019 and through 2021 as summarised above;
• explained the Council had treated her appeal of November 2021 as a complaint and logged it as such in December, saying Miss X had been “informed about the adult social care complaints process” in January 2022;
• apologised that in its communications, it had not clearly set out the distinction between the financial assessment process and its complaint procedure. It said its finance officers would always try and resolve concerns around financial assessments in the first instance;
• said that its finance team would give “a detailed response on the expenses detailed in your complaint” within 28 days;
• reiterated the Council’s position that unless Miss X could provide evidence “the mortgage included your father’s income” that its position would remain as explained in 2019. That it considered Mr Y had no financial interest in the house and no liability to make mortgage payments.

32. In June 2022 the Council wrote to Miss X and enclosed an annotated version of the income and expense form she submitted in November 2021. This explained the Council could only allow 50% of the charges towards water rates and council tax so long as Mrs Y was alive (the Council revised these amounts in financial assessments after January 2022). It did not comment further on Mr Y’s contributions to the mortgage. It said the MIG was intended to cover costs including utilities and food. While other payments towards items such as mobile phones and personal credit debts were not considered “essential” and therefore could not be taken into account as part of its assessment.

My findings

My approach to the Ombudsman’s jurisdiction

33. I consider part of Miss X’s complaint is a late complaint. She complains the Council has not completed a satisfactory financial assessment of what Mr Y should pay towards his care during the events covered by this complaint. The earliest of these events dates to November 2018. And Miss X knew the outcome of the Council’s first financial assessment in January 2019. She needed to make a complaint to this office about that assessment no later than January 2020 to avoid it being considered late. Similarly, Miss X waited more than 12 months to complain to us about the subsequent financial assessment conducted after Mr Y began receiving social care again in January 2020. She did not resume her correspondence with the Council about Mr Y’s financial assessments until May 2021.
34. I must decide therefore whether to restrict my consideration of Miss X’s complaint to consideration of the Council’s financial assessments of Mr Y’s contributions between May and December 2021. Or whether I should use discretion to encompass investigation of those earlier assessments.
35. I have decided to exercise discretion in this case. Primarily this is because I consider the way the Council dealt with Miss X’s correspondence about the financial assessment in 2019 was unsatisfactory. I find that at that time Miss X made clear why she wanted to appeal the financial assessment. It was on the grounds the Council would not take account of the payments her father made towards the mortgage and the general financial hardship she believed would be caused by him making the payments demanded.
36. Yet when Miss X tried to appeal on these grounds she was frustrated in doing so. I accept the Council gave reasons for why it considered it could not revise Mr Y’s financial assessment on the grounds suggested by Miss X. But it did not signpost Miss X to the Council complaint procedure. Its responses had the effect of discouraging or blocking an appeal or complaint, on the terms on which Miss X wanted to pursue such matters.
37. A secondary ground for exercising discretion is that Miss X has explained 2020 was a difficult year for her, due to having health issues of her own.
38. Third, I consider investigation of events going back to 2019 practical, given the Council has retained records.

Findings on the substance of the complaint

39. Turning to the substantive matters raised by Miss X’s complaint, I have explained above that I have concerns about the customer service she received in 2019. I also have concerns around the customer service the Council provided to Miss X following her later communications from May 2021 onward. These are:

• first, a failure by the Council during June and July 2021 to clarify if it was in the process of reviewing Mr Y’s assessed charge. While I am unclear why Miss X believed this was so at the time, her emails made clear that belief. Yet the Council did not reply until August to explain its position;
• second, a failure by the Council to explain the relation between representations or appeals on the outcome of financial assessments and its complaint process during her communications with the financial assessment service between May and November 2021;
• third, the six-month delay in answering Miss X’s correspondence of November 2021 which challenged Mr Y’s financial assessment;
• fourth, that when the Council replied to the November 2021 correspondence in April 2022, its response was incomplete. Miss X had to wait a further six weeks for explanation from the Council as to its consideration of Mr Y’s outgoings. This delay and fragmented response appear to be a direct consequence of the confusion over process identified in the second bullet point above.

40. I consider these concerns sufficient to justify a finding of fault. I also consider this combined poor customer service will have led to some injustice to Miss X as she has been put to unnecessary time and trouble over and above that inevitably incurred when pursuing an appeal or a complaint.
41. Turning next to the issue at the crux of the complaint – how the Council has carried out its financial assessments - it is important to note the Ombudsman is not an appeal body. This means we cannot substitute our own judgment for that of the Council when considering a decision it has come to. Our role is instead to look at the process followed by an organisation when making its decision. If it has followed a correct decision-making process, we cannot question whether its decision was right or wrong.
42. This leads me to consider what the correct decision-making process should have been in this case. In deciding what Mr Y should pay towards his care I consider the Council would have to take account of all evidence relevant to an assessment. The Council should therefore be able to show that it has:

• reviewed the financial assessments to assure itself they are correct;
• understood the relevant facts around the ownership of Mr Y’s home and the mortgage there was secured against it;
• given attention to any exceptional circumstances that Mr Y has (as raised by Miss X); and
• applied all the above to relevant guidance and policy.

43. I find evidence to show the Council has done all these matters. On the first point I have checked its financial assessments and they contain no arithmetical errors. I am satisfied the Council properly allowed for 50% of the council tax and water rates charges that Mr Y was liable for along with Mrs Y. Further that it took account of disability related expenses he incurred. Further that it properly disregarded his disability living allowance (mobility) and the appropriate MIG amount before deciding what Mr Y could pay.
44. On the second point, the Council found:

• before December 2021 Mr Y did not own the house he shared with Mrs Y; it was owned by Mrs Y and Miss X;
• that a mortgage secured on the house was also in the names of Mrs Y and Miss X.

I find no evidence these are not the correct facts.

45. On the third, the Council can show that it has considered all that Miss X has said about why Mr Y was making payments towards the mortgage and has gone through all the expenses she has said Mr Y has each month. These include his personal debts. It has explained its position in emails and in its complaint response. It has gone through Mr Y’s itemised expenses and annotated these with its comments.
46. I find on the fourth point, the Council has applied itself to the law and guidance. On the question of the mortgage payments, I find the Regulations are clear. A mortgage payment is a housing-related cost which the Council must consider discounting as part of a financial assessment. But it can only do that where the housing-related cost is one that the person receiving care is ‘liable’ to make.
47. I consider there is no fault in the Council’s position that Mr Y was not liable to pay the mortgage. First and foremost, he was not a party to the mortgage. But second the Council has still considered if there was an expectation Mr Y contribute towards it when it was taken out. It has not dismissed Miss X’s statements on this point but asked for evidence to support them. Which sadly, she has been unable to provide.
48. Further, I find the statutory guidance makes clear that when a council assesses whether someone should contribute to their care charges, the assessment must be done on an individual basis. The Council could not carry out a joint financial assessment of Mr and Mrs Y that would look at their pooled resources and outgoings, even if that was how they chose to manage their financial affairs.
49. I also consider the Council can show that it has considered the other expenses Mr Y has. I cannot find fault in its view that the MIG is expected to be sufficient to cover many of these, or else the expenses declared by Mr Y are not ones that should take precedence over his care charges. I note this complaint draws attention to what happens when someone who has multiple debts and has entered payment arrangements with creditors having earlier defaulted, is also asked to pay care charges. I do not consider there is anything in the law or guidance which requires the Council to give a greater priority to these pre-existing arrangements. So, while I accept the MIG cannot be enough for Mr Y to maintain those payments and enable him to meet costs for his food and utilities, I find there is no requirement for the Council reduce its assessed charge by way of compensating for that.

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Agreed action

50. The Council accepts these findings. It has agreed that within 20 working days of this decision it will take action to remedy the injustice caused to Miss X, as explained in paragraph 40 above. The Council will:
1. apologise to Miss X accepting the findings of this investigation;
2. pay Miss X £150 in recognition of the unnecessary time and trouble it has put her to.
3. confirm in writing that it will agree to place a hold on any recovery action in respect of Mr Y’s debt for unpaid care charges to allow for assessment of the affordability of how this debt can be repaid; that hold should last a minimum of six weeks;
4. confirm in writing that it will reconsider its position in the event Miss X is able to obtain information from the mortgage broker so long as such evidence is provided within three months or such longer period of time as it thinks appropriate.
51. This agreed action takes account of the Ombudsman’s published guidance on remedies.
52. The action agreed at c) above is agreed in part to allow Miss X some time to contact Mr Y’s creditors (if necessary), to re-negotiate his current payments to them.
53. The action agreed at d) above takes account of the Council’s previously indicated willingness to review its position on Mr Y’s liability to pay the mortgage, in the event there is evidence a mortgage broker took account of his income in their recommendation to the mortgage lender.

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Final decision

54. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Miss X. The Council has agreed action that I consider will remedy the injustice she has been caused. Consequently, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman