Summary: There was fault as the Council delayed carrying out a CHC checklist and delayed providing appropriate information to Mr B regarding expenditure at his brother’s supported housing placement. This meant that the financial assessment of Mr B’s brother may not be accurate. The Council has agreed to apologise, to pay a financial remedy and to carry out a revised financial assessment and backdate any refund to 1 January 2022.

The complaint

1. Mr B complains on behalf of his brother, Mr C who does not have the mental capacity to make the complaint.
2. Mr B complains about failures and delays in providing him with information regarding the cost of Mr C’s placement and a delay in carrying out a CHC checklist.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I have discussed the complaint with Mr B. I have considered the information he and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

6. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s powers to charge. The Council also has its own policies.

Financial assessment

7. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care.
8. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person’s income below a certain level. The overarching principle is that any charges must be affordable.

Disability related expenditure (DRE)

9. Because a person who receives care and support outside a care home will need to pay their daily living costs such as rent, food and utilities, the charging rules must ensure they have enough money to meet these costs. After charging, a person must be left with the minimum income guarantee (MIG) which is set out in the regulations. A council can allow people to keep more than the MIG.
10. In addition, where a person receives benefits to meet their disability needs that do not meet the eligibility criteria for local authority care and support, the charging arrangements should ensure that they keep enough money to cover the cost of meeting these disability-related costs.
11. 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.

NHS Continuing Healthcare

12. NHS Continuing Healthcare (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. The National Framework for NHS Continuing Healthcare provides the guidance.
13. Eligibility for NHS Continuing Healthcare is assessed in two stages in most cases. The assessment process usually starts with a screening tool called the Checklist which, if positive, indicates that a person needs a full assessment of CHC.
14. Where there may be a need for NHS Continuing Healthcare, a Checklist should normally be completed.

Council’s policy - financial support

15. The Council has a policy which sets out how it provides financial support to people in supported accommodation, particularly residents who lack the mental capacity to manage their finances.
16. This says:
• The Council will draw up a financial plan for each resident. This sets out, among other things, what the resident needs to pay, to whom, method and the frequency of payments and, in the case of shared tenancies, the agreement of split costs.
• Any time money is withdrawn from a resident’s account or received, this must be recorded on their finance sheet and a receipt must be obtained.
• A finance record must be kept which includes all money paid by the resident, a receipt or written acknowledgement of receiving the goods, any item disposed of, any service charges. This finance record should be checked on a weekly basis.
• A financial record of transactions relating to the housekeeping or petty cash accounts should be set up which should clearly indicate what money the resident has paid towards the housekeeping or petty cash and any transactions on the account.
• A weekly check of the records should be done and signed off to ensure that everything has been done correctly.
• A further monthly audit was also carried out by the managers.

What happened

17. Mr C is an adult who has autism and a learning disability. Mr B is Mr C’s deputy for property and financial affairs as Mr C lacks the mental capacity to manage his finances.
18. Mr C lives in a supported housing placement and the support is provided by the Council’s Disability Supported Accommodation Service. I will call this the ‘support team’.
19. Mr C had to pay a weekly contribution to the Council towards the cost of his care package. I will call this the ‘contribution’ throughout the decision. This was based on the Council’s financial assessment of Mr C’s income, the MIG and the DRE.
20. After the deduction from the contribution, Mr C was left with an income which he could use to pay his communal spending costs including his utility bills, but also his food, clothing, DRE and any activities. As Mr C lacked the capacity to manage his finances and lived in a shared supported housing placement, the staff of the support team managed his day-to-day money for him.
21. The support team said Mr C had to pay a charge of £135.30 per week towards the cost of his daily living. I will call this the ‘weekly charge’. The weekly charge covered both the communal bills and any individual spending that Mr C had.

Mr B’s complaint – February 2022

22. Mr B complained on 17 February 2022. I have summarised the complaints insofar as it is necessary for the complaints that I am investigating.
23. Mr B said:
• He had asked for a CHC Checklist to be undertaken for years and the Council had not done it.
• Mr C could not afford the weekly charge at his placement. Mr B had asked ‘on numerous occasions’ for a detailed breakdown of Mr C’s weekly spend, but the Council had not provided it.
• Mr C often ripped his clothes and damaged household items which led to extra costs to replace them. These costs could be considered as DRE in the financial assessment. But the Council needed to provide him with the evidence of the costs to enable him to claim the costs as a DRE. Because the Council was not providing him with the necessary information, he could not make the appropriate claims for DRE. In the meantime, the staff at the placement kept asking Mr B for more money to pay for the replacements which Mr C did not have.
• He was extremely upset about a telephone call before Christmas when staff told him that Mr C had now ripped all his clothes and Mr B needed to urgently transfer money over. When Mr B asked what Mr C was wearing, he was told Mr C was wearing ripped clothes. Mr B said the situation should never have been allowed to get to that crisis stage.
• He had, in addition to providing extra money for clothing, also dropped off 75 items of clothing for Mr C.
• Mr C was asked to pay towards a joint media package but Mr B felt that Mr C did not benefit from this package.
• Mr C was asked to pay towards a sofa which enabled a two-person restraint to be undertaken. This was a bespoke and specialised model which was more expensive, but the Council had not provided evidence why this model was required.
• The Council said it would inform Mr B of any incidents involving Mr C, but had failed to do so.
• When Mr B told the Council officer that Mr C could not afford the weekly charge of the placement, the Council officer said this may be a ‘safeguarding issue’ which was inappropriate.

The Council’s response

24. The Council responded and said:
• It would carry out the CHC checklist.
• It upheld the complaint that Mr B had not been provided with ‘meaningful expenditure information’. The Council said Mr C’s financial plan would be reviewed and Mr B would be provided with a clear statement of expenditure which would set out the joint expenses and Mr C’s contribution to those expenses and Mr C’s own expenses.
• The Council provided a breakdown of Mr C’s average weekly spend. This added up to £118 a week.
• The cost of the media package was shared and Mr C enjoyed nature programmes and films which were part of the package.
• It upheld the complaint that it had not informed Mr B of the incidents involving Mr C. It explained that there had been 12 physical interventions with Mr C in the last year and apologised that incident reports had not been sent to Mr C.
• It explained that the sofa had to be the correct one to allow the interventions to take place.
• It could not find evidence that a safeguarding issue had been raised.

Mr B’s complaint – April 2022

25. Mr B was not satisfied with the Council’s response and provided more information on his complaint.
• He provided evidence that he had asked for a CHC checklist to be carried out since 2017.
• He would not agree to pay £128 a month for a tv package as Mr C did not need the package. He could watch alternative programmes on free channels.
• He suggested a cheaper sofa which would still be appropriate to meet Mr C’s needs.
• In terms of the receipts, he accepted the Council’s offer to provide him with receipts from now on but said he wanted this information, not only in the future, but also for the last financial year, in addition to the incident reports. He also needed this for the yearly accounts he had to submit to the Office of the Public Guardian as deputy for Mr C.
26. Mr B also attached the email correspondence relating to his requests for financial information to the Council officer which then led to the Council officer mentioning safeguarding.
27. In the emails, the Council officer told Mr B that the staff at Mr C’s placement could not manage on the reduced amount of money that Mr B was paying towards his placement.
28. Mr B replied and explained that, in the past (2017) when Mr C’s mother managed Mr C’s finances, the weekly charge towards the placement was higher than Mr C’s net income (after he paid his contribution to the care costs) which was clearly not sustainable. Mr B then negotiated a lower weekly charge but Mr C was still living ‘from hand to mouth each month.’ Therefore he could not be expected to make extra payments.
29. The Council officer replied and said Mr C had to pay an equal share in the communal costs, such as the tv licence and tv package. The Council officer said: ‘… staff are already struggling to support citizens as they are living below standards as expected. Reducing [Mr C’s] money is also impacting on sharing living in the service…’. The Council officer later said: ‘both myself and staff at [the placement] has raised concerns so many times. That we also feel it is a safeguarding issue due to failing to provide the support to [Mr C] especially on his activities.’
30. The Council officer said he ‘hoped and believed’ the Council’s finance department would be able to reduce the care charges and address the imbalance.

The Council’s reply

31. The Council replied to Mr B’s stage 2 complaint and said:
• It apologised that the CHC checklist had still not been carried out. It said this would be done very soon.
• The tv package had been reduced to £114. The Council pointed out that the package included the telephone landline, the wifi and the tv subscription and the wifi and telephone landline were necessary for everyone at the house. The Council said it would speak to all the residents to find out their usage of the package. As soon as it had obtained that information, it would discuss the matter with Mr B to find a way forward.
• In terms of the evidence of the costs of the clothes, the Council was compiling a backdated list of damaged clothes, as well incidents when clothes were destroyed and the last financial year’s finance sheets. It would send this information to Mr B by the end of May 2022
• The Council upheld the complaint that the safeguarding terminology had been used inappropriately. It said it was undertaking further training with the team to ensure that they clearly understood safeguarding.    
• It agreed to pay for half of the sofa.

Mr B’s complaint to the Ombudsman – November 2022

32. Mr B came to the Ombudsman in November 2022. He said that despite upholding most of his complaint, the Council had still not taken the actions it had promised in its complaint response. He said he had still not received the CHC checklist or the information he needed to make the DRE claim. There was still a problem relating to the charges for the placement.

Meeting – December 2022

33. The Council held a meeting with Mr B on 5 December 2022. The Council’s manager said the CHC checklist had been carried out and a recommendation made for a full assessment to be carried out. If this was positive, then this may ease the pressure on Mr B’s finances.
34. Mr B explained again that the Council’s finance department asked him to provide evidence of the expenditure on clothing but the Council had been unable to provide him with this as often the clothing was bought at the same time as food and the receipts were not itemised.
35. The Council promised to introduce a separate finance sheet for clothes and to keep all clothing receipts separately. The staff would also consider buying good quality clothes in charity shops, instead of always buying new clothes.
36. In terms of the media package, the Council said it had been able to obtain a reduced rate with the provider. It said that, when the current contract came up for a review, the staff would ensure that it was affordable and explore alternative provision for Mr C.

Further information

37. The Council provided further information to the Ombudsman in January 2023 and said:
• The CHC checklist was completed on 6 August 2022.
• In terms of the evidence on the expenditure of clothing, these should have been sent to Mr B regularly since September 2022.  The Council had sent evidence relating to May, June, July and August 2022.  However, since then, the coordinator who was meant to send the information had been frequently absent from work but the information had been sent in January 2023.
• The Council accepted there were gaps in some of the clothing receipts provided as the items were often purchased at supermarkets along with weekly food shopping, which led to Mr B complaining to the Ombudsman.
• The Council held a meeting with Mr B on 5 December 2022 to discuss his concerns. The Council agreed for these meetings to take place between Mr B, the Council’s service manager and the placement manager.
• The sofa was replaced in December 2022 and the Council contributed to the cost of the sofa. 
38. Mr B has also provided some further information.
39. The most recent financial assessment of Mr C was in August 2022. The assessment said Mr C had to pay a contribution of £137.03 per week towards his care costs. The Council allowed a DRE of £4.12 for laundry. Mr B had asked for DRE to be considered for clothing and beds and bedding, but the Council’s finance team denied this request as it said Mr B had provided no receipts of the extra expenditure.
40. Mr B said it was his understanding that the weekly charge to the placement should cover Mr C’s costs of daily living, including his clothes, and any DRE.
41. However, he said that that he often received calls or emails from the staff at the placement asking him to pay extra money for clothing for Mr C as Mr C had ripped his clothes. He said Mr C also damaged his bed and bedding so these were replaced more frequently.
42. Mr B said he sent the team around an extra £1,000 last year for Mr B, in addition to the weekly charge, mainly to be spent on replacement clothing. He also sent around a hundred items of clothing but these were second hand.
43. Mr B said a review financial assessment was started in January 2023. The Council’s support team provided evidence of expenditure on clothing for last year which added up to £300. The Council’s finance department said it could not agree to a DRE for clothing unless Mr B was able to provide receipts.

Analysis

44. The Council has already upheld the complaint that there was a delay in carrying out the CHC checklist and I agree this was fault. It is clear from Mr B’s emails that he has asked the Council for several years to carry out a CHC checklist as he thought Mr C could be eligible for CHC funding. The threshold to carry out the checklist is low and the Council should have done this earlier. I do not know, of course, what the outcome of the full assessment for eligibility for CHC funding will be so it is difficult to say whether Mr C has suffered any injustice as a result of the delay. Also, if Mr C is found to be eligible for CHC funding, he has the option to ask for the funding to be backdated.
45. I agree there was fault in the use of the safeguarding terminology. Mr B was questioning how the placement was spending Mr C’s money as he could not allow Mr C’s spending to exceed his income. This was never a safeguarding concern and that language was entirely inappropriate.
46. In terms of the finances and Mr B’s dispute with the Council regarding the charges, I will address these complaints as they are linked.
47. The Council’s support team should have been able to provide Mr B with the necessary information that he needed in terms of Mr C’s expenditure for the last year. The Council’s policy shows the records that all staff should keep when managing a resident’s finances.
48. The Council’s delay in providing the information to Mr B and their continued failure to provide the information was fault.
49. As a consequence, Mr B was unable to provide the Council’s finance team with the necessary evidence of the expenditure and this meant that the finance team could not consider the DRE properly or reduce the amount of Mr C’s contribution accordingly.
50. In terms of the purchase of the sofa, there was a delay although I accept that some of the delay was linked to finding the sofa and reaching an agreement about the split of the payment.
51. In terms of the media package, it is not for the Ombudsman to say what the placement can and cannot charge. I accept that some services are used by all the residents and staff and therefore the costs need to be shared in a communal setting. However, I also see Mr B’s point which is that Mr C has no choice in the matter as he has to live in a communal setting because of his disability.
52. I note the Council has said, in the meeting in December 2022, that it would explore alternative provision for Mr C, once its media contract was up for renewal so hopefully a compromise can be reached.

Injustice and remedy

53. I have considered whether Mr C has suffered injustice because of the fault. The delay in providing the full financial information has affected Mr C as it has meant that the Council’s finance team did not have all the information it needed to properly assess his finances. It may well be that, once his finances have been fully assessed, that his disposable income increases. There were also real effects in that he did not have the sofa that he required to meet his needs and sometimes did not have appropriate clothing to wear.
54. Mr B suffered injustice as he had to pursue the Council repeatedly in providing Mr C with the service he should have been provided with.
55. It appears to me that Mr B was in a difficult position as the finance team was insisting on evidence of DRE that he could not provide, because of the failure by another Council department.
56. I would have expected there to have been some joined up working between the two departments.
57. Therefore, the remedy has to be that there is more joined up working between the finance team and the support team in terms of providing the evidence of expenditure for the last year. I recommend the following.
58. Mr B should be given the opportunity to give evidence of any extra money that he provided to the support team to be spent on Mr C last year (2022) or evidence of clothing he bought.
59. The support team should then provide a breakdown of how it has spent the money that Mr B has paid them last year, both the weekly extra charge and any additional money provided by Mr B.
60. This information should be provided to the finance team who should review Mr C’s financial assessment. The finance team should accept the Council’s support team’s breakdown as evidence of expenditure even if receipts are not provided for all the expenditure, as the breakdown is provided by another Council department. If this results in a reduction of the contribution, then this should be backdated to 1 January 2022.

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Agreed action

61. The Council has agreed to take the following actions within two months of the final decision. It will:
• Apologise in writing to Mr B and Mr C.
• Pay Mr C £150 for the distress that he has suffered.
• Pay Mr B £250 for his distress and time and trouble.
• Carry out a revised financial assessment of Mr C following the process outlined in paragraphs 57 to 60 above. If the financial assessment results in a reduced contribution, then this figure should be backdated to 1 January 2022 and the appropriate refund given to Mr B (as deputy for Mr C).
62. The Council should provide us with evidence that it has complied with the above actions.

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Final decision

63. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman