Summary: We did not uphold a complaint about the charge for Mr X’s care because the Council’s financial assessment was in line with guidance on charging for non-residential care.

The complaint

1. Mrs X complained for herself and on behalf of her husband Mr X:
1. They cannot afford the charge for Mr X’s care and so they were forced to stop care
2. The social worker said Mrs X had to give up work because she needed to stay at home to look after Mr X.
3. Mr X had never been offered respite care.
2. Mrs X said this had affected their mental and physical health and Mr X’s care is unaffordable and so they have cancelled it. There is also an unpaid bill because they were unaware the charge would still apply while they were disputing it.

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The Ombudsman’s role and powers

3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
4. Midlands Partnership NHS Foundation Trust (the Trust) provides adult social care services for the Council. Mr X’s case is managed by a team within the Trust. We can investigate it.
5. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. I considered the complaint to us, the Council’s complaint response and documents described in this statement. I discussed the complaint with Mrs X.
8. 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

Relevant law and guidance

9. Councils have the legal power to charge for care. If they do so, they must carry out an assessment to determine how much the person should pay (a financial assessment).
10. The charging rules for residential care are in the Care and Support (Charging and Assessment of Resources) Regulations 2014. Councils should also have regard to the Care and Support Statutory Guidance (CSSG).
11. The Care Act requires adults receiving care and support to be left with a basic income after their charge which is to meet living costs like food and drink, travel, utilities, insurance. This is called the Minimum Income Guarantee (MIG). There are allowances for housing costs (mortgage, rent and council tax) and disability expenses (CSSG paragraph 8.42)
12. Disability Related Expenditure (DRE) are expenses that a person has to pay connected to their disability. They are an allowance in a person’s financial assessment and reduce their weekly charge. DRE can include specialist items and services such as wheelchairs. They can include extra heating or laundry costs, equipment and aids and regular payments such as wheelchair insurance and gardening costs. Statutory guidance says:
• A council must leave a person with enough money to pay for necessary DRE to meet needs that are not being met by the local authority
• The care plan may be a starting point for considering DRE, but councils need to be flexible. (Care and Support Statutory Guidance Annex C, 39 and 41)
13. The Council has standard allowances for DRE. Its policy says people can ask for an individual assessment if they think their DRE is higher than the standard allowance.
14. Guidance allows councils discretion to charge for care outside a care home (Paragraph 8.41) and makes it clear they should consider how to use discretion to support charging to ensure people are not charged more than is reasonably practicable (Paragraphs 8.40 and 8.45)

What happened

15. Mr X and Mrs X live together in their own home. Mr X has social care funding with which he arranged home care and day care at a centre.
16. The Council completed a financial assessment for Mr X. This considered his income, property expenses and applied a standard DRE of £25. As part of the financial assessment, the Council also considered Mrs X’s finances. It applied a couples’ discretionary disregard (because her expenditure exceeded her income) and this reduced Mr X’s charge by about £12.
17. The Council wrote to Mr X with the outcome of its financial assessment. The letter set out the weekly charge of just over £50 and gave a breakdown of how the Council had calculated it. The letter went on to say the charge needed to be paid including while any disputes were investigated.
18. Mrs X appealed against the charge and asked for the Council to consider and increase Mr X’s DRE. I have summarised the Council’s consideration of each DRE:

Item requested Outcome

Alarm pendant awarded

Internet refused as already covered in daily costs

Phone line awarded

Petrol awarded

Gas and electric refused as amount requested is less than the average usage

Window cleaner awarded

Haircut not awarded. Policy is for hair washing only

Toiletries awarded

Car insurance refused as already covered in daily costs

Food refused as not enough evidence provided that the expense is disability related.

19. The outcome of the appeal was the charge was the same because the DRE awarded in the tailored assessment was less than the standard £25 the Council had already awarded.
20. Mrs X also complained to Midlands Partnership NHS Foundation Trust (the Trust) which delivers adult social care on behalf of the Council. The Trust’s response said:
• The social worker advised she needed to consider employment options and how the hours she worked might affect her benefits. The Trust was sorry she came away feeing unsupported;
• The social worker’s assessment was that Mr X needed to continue accessing day care two days a week and this included relief for her from the caring role;
• The social worker offered an individual carer’s assessment but she declined;
• Mr X’s case had been allocated to a different social worker for a fresh assessment, but social care services would still be chargeable; and
• She said the duty worker had not told her she needed to ask for the direct payment to be suspended while the Council dealt with her financial assessment complaint. The Council said it was sorry for the miscommunication and the resulting charges.
21. Mr and Mrs X were unhappy with the charge and complained to us.
22. Mrs X told me her husband would not accept respite care. She also said relatives were supporting Mr X while she was at work. She went on to say a duty social worker had advised her to continue with Mr X’s care while the charge was being appealed.

Was there fault?

Complaint (a) They cannot afford the charge for Mr X’s care and so they were forced to stop care

23. It is not our role to determine the charge for Mr X’s care or to say how much DRE allowance Mr X should receive for each item claimed. Our role is to determine whether or not there has been fault by the Council. We expect councils to have regard to CSSG when they undertake financial assessments.
24. The Council has acted in line with the relevant parts of CSSG I have set out in paragraphs 11 to 14 so there are no grounds for me to criticise its decision. The Council considered Mr X’s DRE and applied allowances to those items it considered to be connected to his disability. The outcome of the tailored DRE assessment was that the individual awards in total were less than the standard £25 allowance, so the higher amount applied. In addition, the Council used discretion and took into account Mrs X’s income and this reduced Mr X’s charge by £12. This is in line with Paragraphs 8.40 and 8.45 of Care and Support Statutory Guidance which encourages councils to use discretion to ensure charges are affordable.
25. The Council explained in its decision letter that people would need to pay their charge during a complaint/dispute. So there is no fault in the Council applying the charge for the period until Mr and Mrs X notified the Council they wanted care to stop. Mrs X was given verbal advice to continue with care during the dispute, however, the Council’s written advice made it clear the charge would be payable while the charge was under appeal.

Complaint (b) The social worker said Mrs X had to give up work because she needed to stay at home to look after Mr X.

26. The Trust explained in its complaint response that the social worker was discussing how Mrs X might structure her working hours. There is no fault in this discussion. Even if the social worker had said she should consider giving up work, it would not be fault. It is a discussion about options which was within the social worker’s remit to explore.

Complaint (c) Mr X has not been offered respite care

27. Mrs X told me Mr X would not accept respite care even if it was offered. The Trust has offered a carer’s assessment which she has declined. And Mrs X told me Mr X would not accept respite care in any event. So there is no injustice or fault.

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Final decision

28. I did not uphold a complaint about the charge for Mr X’s care because the Council’s financial assessment was in line with guidance on charging for non-residential care.
29. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman