Summary: Mrs X complained the Council discriminated against her daughter, Miss Y. Mrs X stated if Miss Y was able to get paid employment, she would not contribute as much towards the cost of her care. Mrs X says the Council’s policy discriminates against people who have severe disabilities and are unable to gain paid work. Mrs X says this meant Miss Y pays more towards her care than others who are able to work. The Council was not at fault.

The complaint

1. Mrs X complained the Council discriminated against her daughter, Miss Y. Mrs X stated if Miss Y was able to get paid employment, she would not contribute as much towards the cost of her care. Mrs X says the Council’s policy discriminates against people who have severe disabilities and are unable to gain paid work. Mrs X says this meant Miss Y pays more towards her care than others who are able to work.

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The Ombudsman’s role and powers

2. 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)
3. If we are satisfied with a Council’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

4. I read Mrs X’s complaint and spoke to her about it on the phone.
5. I considered information provided by Mrs X and the Council.
6. Mrs X 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

7. 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 places other than care homes. 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)
8. 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. Councils have no power to assess couples according to their joint financial resources. A Council must treat each person individually. A Council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.
9. People receiving care and support other than in a care home need to keep 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)
10. 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.
11. The Norfolk Judgement is a high court ruling from December 2020. The Courts considered the question of how Council’s need to have regard to the potential differential impact of charging policies on people who have a higher than normal proportion of their income from benefits. The Court ruled Norfolk County Council’s policy was unfair and discriminated against people who had more significant disabilities and were unable to work.

What happened

12. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case. I have considered events in this case up to when Mrs X complained to the Ombudsman, in October 2022.
13. Miss Y has a significant disability and has been receiving services from the Council’s adult social care since 2016. She was initially assessed as making no contribution to her care.
14. The Council reassessed Miss Y in April 2020 and determined she would need to contribute financially to her care costs. The Council wrote to Miss Y to inform her of its decision.
15. The Council completed its annual uplift in April 2021. It increased the contribution and communicated this decision to Miss Y.
16. The Council reviewed Miss Y’s financial assessment in April 2022. This reduced the contribution, and it communicated its decision with Miss Y.
17. Mrs X complained to the Council in April 2022. Mrs X stated the Council was discriminating against people with significant disabilities as people who are able to work keep more of their money when being assessed for non-residential charging. Mrs X cited the Norfolk judgement. Mrs X said the Council was discriminating against Miss Y because her disability prevented her from working.
18. The Council wrote to Miss Y in September 2022. It informed her the financial contribution would be increasing significantly and this would be backdated to the start of June 2022.
19. Mrs X challenged the amount on the financial assessment and said the new charge was unaffordable. The Council explained the charge was only for the three days per month respite care and would be evidenced on a four weekly statement.
20. The Council responded to Mrs X’s complaint in October 2022. The response went over telephone calls with Mrs X. The response explained the Council’s charging policy and confirmed the Council had acted appropriately. The Council stated the policy is in line with the Statutory Regulation and Guidance under the Care Act 2014. The Council confirmed it reviewed its policy after the Norfolk judgement.
21. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to review its charging policy.
22. In response to my enquiries the Council stated it followed all legislation and guidance. The Council confirmed it reviewed the charging policy after the Norfolk judgement and increased its mandatory allowance for people in receipt of additional benefits due to the severity of their disability.

My findings

23. The Council has evidenced it considered the Norfolk judgement and had regard to this when it reviewed the charging policy. The Council confirmed it applied a higher mandatory allowance for Miss Y when it completed her financial assessment. The Council also disregarded the enhanced benefit payments, instead using the standard rate for its calculations. I have not found fault by the Council.
24. It is not the role of the Ombudsman to decide if a policy is legal. Only the Courts can make a decision on the legality of a policy.

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Final decision

25. I have completed my investigation. I have not found fault by the Council.

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Investigator's decision on behalf of the Ombudsman