Summary: There was fault in the way the Council assessed Mr C’s finances as the Council has not demonstrated how it assessed the affordability of the contribution it expects Mr C to make to the cost of his care package. The Council has agreed to apologise, re-asses Mr C’s finances and pay a symbolic payment.

The complaint

1. Mr B complains on behalf of his parents-in-law, Mr and Mrs C. He says the Council has failed to properly assess Mr C’s contribution to the cost of his care package and Mr C cannot afford the contribution.

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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. 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

4. I have discussed the complaint with Mr B. I have considered the information that 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

5. 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 duties towards adults who require care and support and its powers to charge. The Council also has its own policies.
6. I have set out the relevant policies insofar as they apply to a person who has capital below the threshold of £23,250 and who receives care at home (not in a care home.)
7. The Guidance says:
• The intent of the regulations and guidance is to support local authorities to assess what a person can afford to contribute towards their care costs.
• Local authorities should also consider how to use their discretion to support the principles of care and support charging.

Power to charge

8. 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)

Financial assessment

9. 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.
10. The Guidance says:
• The overarching principle is that people should only be required to pay what they can afford.
11. The principles are that the approach to charging for care and support 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.

Minimum income guarantee

12. 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).
13. The purpose of the minimum income guarantee is to promote independence and social inclusion and ensure that they have sufficient funds to meet basic needs such as purchasing food, utility costs or insurance. This must be after any housing costs such as rent and council tax net of any benefits provided to support these costs – and after any disability related expenditure (DRE). 
14. However, the MIG is only a minimum and local authorities have discretion to set a higher level if they wish.
15. Local authorities should develop and maintain a policy on how they wish to apply this discretion locally. In designing this policy local authorities should consider the objectives of care and support charging and how it can (among other things):
• ensure that people are not charged more than it is reasonably practicable for them to pay.
16. The government considers that it is inconsistent with promoting independent living to assume, without further consideration, that all of a person’s income above the minimum income guarantee (MIG) is available to be taken in charges.
17. Local authorities should therefore consider whether it is appropriate to set a maximum percentage of disposable income (over and above the guaranteed minimum income) which may be taken into account in charges.
18. Local authorities should also consider whether it is appropriate to set a maximum charge, for example these might be set as a maximum percentage of care home charges in a local area. This could help ensure that people are encouraged to remain in in their own homes, promoting individual wellbeing and independence.

Assessing couples

19. The Guidance says the following regarding couples:
• The local authority has no power to assess couples or civil partners according to their joint resources. Each person must therefore be treated individually. 
• Only the income of the cared-for person can be taken into account in the financial assessment of what they can afford to pay for their care and support.
• Where this person receives income as one of a couple, the starting presumption is that the cared-for person has an equal share of the income.
• A local authority should also consider the implications for the cared-for person’s partner.

Council’s charging policy

20. The Council’s charging policy says:
• We do not ordinarily assess couples or civil partners jointly. However, we will give regard to any partner or spouse living in the same household to ensure they have enough money to live on.
• Only the income and capital of the cared for person can be used in the financial assessment for care and support.

Council’s leaflet

21. The Council’s leaflet which explains its charging policy to the public says:
• If you are in a couple, we will only assess your financial resources.
• If both of you receive care, we will assess your finances individually to work out how much you will each have to contribute towards the cost of your own care.
• In some circumstances it is beneficial to ask to be financially assessed as a couple.

What happened

22. Mr and Mrs C are an older couple who live at home. Mr C has underlying mental and physical health conditions and requires care and support. Mrs C is his main carer, but the couple also receive a lot of support from their children.
23. The Council assessed Mr C on 11 February 2022 and said Mr C should have two visits a day by a care worker to support him in personal care tasks.
24. Mrs C had a fall which led to reduced mobility and she received reablement care from July 2022. The Council assessed Mrs C on 6 October 2022. Mrs C said the Reablement Team supported her to regain a good level of independence and had shown her ways to do tasks reducing risk to herself. Mrs C received a visit in the morning from the same agency which supported Mr C. She said she was usually washed and dressed by the time the care worker visited but they supported her with breakfast and a hot drink, making the bed and washing. The care worker also supported Mr C which made it easier for Mrs C.
25. Mrs C only had a very small income so Mr C paid the majority of the expenditure the couple incurred. If their incomes were combined, Mrs C’s income was 24% and Mr C’s income was 76% of the total. Mrs C’s income was below the MIG.
26. In October 2022, the Council assessed Mr C’s finances. The calculation said Mr C paid half the rent, half the council tax and the Council used the MIG for a single person resulting in a contribution of £95.45 per week from 26 September 2022.
27. The finance officer spoke to Mr and Mrs C’s daughter, Mrs B on 7 December 2012. Mrs B queried the financial assessment as she said Mr C was not able to afford the charges. Mrs B asked that the couple should be assessed jointly as Mr C was responsible for paying most of the bills. The Council sent a fresh assessment form to Mrs B in December 2022.
28. Mrs B returned the form. The officer emailed Mrs B on 28 December 2022 and said Mrs B had not explained to the Council that Mrs C was receiving a care package as well. This meant he could not offer a joint financial assessment, only single assessments for each person. However, he had included some additional DRE costs which meant Mr C’s contribution was reduced to £80.45.
29. The Council also carried out a financial assessment of Mrs C. Mrs C’s income was £105.36 and her allowances (outgoings) were £275.64 so she did not have to pay for her care package.
30. Mrs B continued to query the financial assessment and an officer visited the family on 18 January 2023 and explained the calculation further.

Letter to the finance officer – 21 January 2023

31. Mr B questioned the assessment on 21 January 2023 and said:
• The Council’s refusal to assess Mr and Mrs C as a couple was not fair as it did not consider the fact that Mr C’s income was 76% of the total and Mrs C earned a lot less than the MIG.
• The Council had refused to include the costs of utilities such as water, gas and electricity which was worrying, particularly in light of the rising costs of gas and electricity.
• The weekly rent was £79.16 including £13.31 housing benefit, but the Council had only allowed £57.84.

Response from the finance officer- 23 January 2023

32. The finance officer responded and said:
• The CASS Guidance said the Council had no power to assess couples or civil partners according to their joint resources, each person therefore should be treated individually.
• The Council only included the actual rent a person paid, after deducting housing benefit, as the housing benefit was paid by the Council. Mr C’s liability according to the Council’s policy was for half the rent so £28.92 had been deducted.
• There was an allowance for gas and electricity but these were included in the MIG. The Council would allow gas and electricity costs if they exceeded the ‘allowable fuel costs’, but Mr and Mrs C’s costs did not.
• The costs of water, house insurance and annual central heating insurance were included in the MIG.
• The Council considered the capital and income and deducted outgoings such as household costs (which were halved for a couple), DRE and MIG.

Complaint – 23 January 2023

33. Mr B made a formal complaint to the Council on 23 January 2023, similar to his previous complaint. He added that the family had decided to cancel Mrs C’s care package in the hope that the Council could reassess Mr and Mrs C as a couple.

Financial assessment – 1 February 2023

34. The Council re-assessed Mr C’s finances on 1 February 2023. It used the single MIG in its calculation. As Mr C’s rent had increased, his contribution decreased to £63.22.

Response – 7 February 2023

35. The Council responded to the complaint and said:
• The CASS Guidance said it had no power to assess couples according to their joint resources and each person should be treated individually.
• It was regrettable that the family had cancelled Mrs C’s care package. This could mean that Mr C’s contribution would increase by £46.05 as the Council would use the couple MIG (which is lower) instead of the single MIG in its assessment.

Complaint – 16 February 2023

36. Mr B continued to raise his complaint further and said:
• They had been advised by the finance officer to submit a joint assessment as this would be better financially for them. They misunderstood the advice and this led them to cancel Mrs C’s care package.
• The Council had not addressed his complaint which was that it had a duty to ensure that people were not charged more than they could afford. Mrs C’s income was well below the MIG. He said that if the income and expenditure of Mr and Mrs Mr C was combined it was clear that Mr C could not afford his contribution as he was paying for most of the couple’s expenditure.
• They asked that Mrs C’s care package was reinstated and said the rent would be increased (Mr and Mrs B were Mr and Mrs C’s landlords) to be nearer the market rent. Therefore they would need a financial re-assessment.

Response – 9 March 2023

37. The Council responded and said:
• The MIG was not an amount to meet. It was the government set amount of money that a person was guaranteed to be left with after the contribution. It explained how the assessment had been done but did not change its position.
38. There was some further correspondence but no new complaints were made.

Analysis

39. I shall firstly set out further what the duties and roles of the Council are.
40. The Guidance says that only the income of the cared-for person can be taken into account in the financial assessment of what they can afford to pay for their care and support. Most councils (and the Ombudsman) have interpreted this to mean that councils cannot force a partner in a couple to disclose their income or capital and cannot force them to pay for their partner’s care.
41. However, councils often offer couples either a financial assessment as a single person or as a couple and charge the contribution which is the lower of the two. There is nothing preventing councils from taking this approach. I note from the Council’s policy and leaflet that the Council sometimes offers joint assessments.
42. In terms of financial assessments, an assessment is essentially a comparison between a person’s income and expenditure. Generally speaking, councils include a person’s actual income, but not their actual expenditure.
43. When it comes to expenditure, councils use the actual housing costs such as rent and council tax, but use allowances such as MIG for other expenditure. The MIG, although it contains the word ‘income’ is not an actual income, but really an estimate, by central government, of what certain expenditures such as food, electricity, gas, insurance and travel cost.

Assessing affordability

44. The overriding principle is that the Council has a duty to assess whether a person can afford the charges. People should only be required to pay what they can afford.
45. The Council was aware that Mr C was responsible for paying most of the bills in the household so the Council had to find a way to assess what impact this expenditure had on Mr C’s ability to pay the contribution.
46. From the information, I have seen, the Council has not demonstrated that it has properly assessed affordability and this is fault.
47. The main change the Council made to address Mr C’s situation was to apply the single MIG rather than the couple’s MIG. I appreciate that the single MIG is more generous than the couple’s MIG so I agree that this would have been more advantageous to Mr C.
48. However, the Council has still not explained how it assessed Mr C’s affordability. Applying a discretion is not the same as assessing affordability. By definition, the MIG for a single person is based on the costs of a single person, not the costs of a couple. So how did the Council assess that using the single MIG in Mr C’s case was sufficient for Mr C to pay the bills for him and Mrs C?
49. Similarly, in terms of housing costs, the Council only allowed half the rent and half the council tax as this is what its charging policy said. However, the Council knew that Mr C was paying more than half of the rent and the council tax. The Council did not explain why it refused to take this extra expenditure into consideration.
50. The Council failed to show that it properly considered Mr C’s personal circumstances and assessed his affordability and this was fault.

Transparency

51. Clarity and transparency are principles of the charging regime.
52. The Council repeatedly said that it was prohibited from offering a joint assessment to Mr and Mrs C because the CASS Guidance did not allow this. That was not true.
53. Also, I note the Council agreed to a joint assessment of Mr and Mrs C on 7 December 2022, but then withdrew the offer on 28 December 2022 because it had not realised, when it made the offer, that both Mr and Mrs C received a care package.
54. However, when the family then cancelled Mrs C’s care package, the Council still did not offer the joint assessment and it did not explain why this was the case.
55. Instead, in the letter dated 7 February 2023 the Council said it would apply the couple’s MIG (rather than the single MIG) in the financial assessment if Mrs C’s care was cancelled. This confused matters further particularly as I note that the Council did not use the couple’s MIG in the later assessments, despite threatening to do so.
56. The Council had a duty to be clear and transparent in its communications with the family and its communications were not clear. The Council did not properly explain its decision making and this was fault.

Injustice and remedy

57. Mr C has suffered an injustice because of the fault as it is not certain, from the assessments, whether the Council has properly assessed the affordability of the contribution. It may be that Mr C has paid a contribution that was too high although I cannot say that without a further financial assessment.
58. The confusing communications also partly contributed to the family’s decision to cancel Mrs C’s package. However, I note that this decision was also partly made because Mrs C’s need for support was lower. I also note that the family informed the Council on 24 January 2023 that it would cancel Mrs C’s package and the Council informed the family on 7 February 2023 that this would not be advantageous from a financial assessment point of view so the injustice in this respect was short.
59. The aim of the Ombudsman’s remedy is to put the complainant in the position they would have been if the fault had not occurred.
60. I recommend the Council re-assesses Mr C’s finances from October 2022 and, if this results in a smaller contribution by Mr C, backdates this to 22 September 2022.
61. It is not for the Ombudsman to carry out the financial assessment or to say how it should be carried out. However, the Council should be able to show that it has assessed affordability, for example, by carrying out a joint assessment.

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Agreed action

62. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise in writing to Mr and Mrs C for the fault.
• Re-assess Mr C’s finances from October 2022 and, if this results in a smaller contribution by Mr C, backdate this to 22 September 2022.
• Pay Mr and Mrs C £200 (in total, not each) as a symbolic payment to reflect the uncertainty and distress caused by the fault.

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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