Summary: Ms X complained the Council did not carry out a proper financial assessment or consider disability-related expenses for her daughter, D. The Council is at fault for delay in reviewing the financial assessment, conducting a joint assessment and responding to correspondence. It has also failed to consider housing expenses in the financial assessment. This has caused distress to Ms D and Ms X.

The complaint

1. Ms X complained the Council did not carry out a proper financial assessment for her daughter, D, and wrongly sent her correspondence and invoices. This caused D distress. Ms X said the Council’s decision is wrong as it does not consider D’s disability-related expenses, which means D will experience financial hardship and an impact on her quality of life. The Council also delayed in responding to Ms X’s correspondence, causing frustration. Ms X wants the Council to reconsider its decision and make service improvements.

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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 significant injustice, or that could cause injustice to others in the future 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. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Care Act 2014, the Care and Support (Charging and Assessment of Resources) Regulations 2014, and the Care Act statutory guidance.
5. Ms 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 legislation

6. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
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. 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.

The Council’s policies and procedures

11. The Council non-residential charging policy is available online. A finance officer will do an initial assessment of charges and complete the relevant documents including the financial assessment. Charges will not commence until the financial assessment has been completed but the Council may backdate the charge to the date the service commenced.
12. For existing service users, where their care plan changes, the weekly charges will change from the date the service changes. Where a service users income changes, any increase in charges will be backdated to the date the relevant change happened.
13. The policy explains the calculation for the financial assessment. It says a service users net income after paying any assessed charge will not be reduced below the Minimum Income Guarantee (MIG). Income to pay relevant housing costs will be disregarded, as will any income needed to pay for certain DRE expenses.
14. The policy says it may carry out light touch financial assessments. This is based on the evidence provided in cases where the Council is satisfied the service user can afford the assessed charge for their service.

What happened

15. I have summarised below the key events; this is not intended to be a detailed account.
16. Ms D is an adult and lives with her mother (Ms X) and adult sibling (S). Ms D has medical conditions.
17. Ms D has a care plan and is in receipt of direct payments. She has historically paid zero contribution towards her care.
18. From September 2021, Ms D started to receive Universal Credit payments.
19. The Council completed a financial assessment in April 2022 but did not know about the changes in Universal Credit.
20. The Council completed a financial assessment in April 2023 and noticed the changes in Universal Credit and took this into account. The Council completed a light touch assessment remotely which said Ms D should make a contribution of around £110 per week towards her care. The Council sent the report to Ms D at the beginning of May 2023.
21. On receipt of the financial assessment, Ms X contacted the Council. She said the Council completed the assessment without their knowledge and asked for a full assessment with their input. Ms X emailed the Council in June and July asking for a response to her earlier correspondence and a meeting to discuss.
22. Ms X met with the finance officer to discuss the assessment and DREs in early September. After the meeting, the assessor discussed the case with their manager who agreed some DREs but not others. An updated financial assessment was sent to Ms X the following week with an explanation for the DREs. The decision was for Ms D to pay around £70 towards her care from April.
23. A few days later, Ms X asked the Council to review the financial assessment. At the beginning of October, a manager reviewed the case and responded to Ms X. The decision was the same.
24. In mid-October, Ms X said she wanted to appeal the decision. A panel considered her appeal, the decision remained the same. The response letter explains why the DRE requests were not upheld.
25. Ms X was not happy with the outcome. In December, the Council agreed to conduct a joint assessment between the social work and finance team to resolve the areas of dissatisfaction with the financial assessment. The Council has not completed this work.
26. The Council carried out a reassessment of Ms D’s needs in January 2024 and said it would send a copy of the assessment to her by the end of February. The Council sent this to Ms X in May with an apology for the delay.

Complaint to the Ombudsman

27. Ms X complained to the Ombudsman in January 2024. She complained the Council completed the financial assessment without her knowledge and addressed the report and invoices to her daughter. This has caused Ms D significant distress as she does not understand the content and is worried the Council wants to take money off her. In conversation with me, Ms X said she asked the Council to pause the invoices until the matter is resolved and to address correspondence to her instead of her daughter. Ms X says the Council continued sending invoices to Ms D at first, causing more stress.
28. Ms X also complained about the delay in the Council reviewing the financial assessment and reassessing Ms D. She complained about the Council's decision on DRE and said the Council did not consider additional heating costs for Ms D to help with her medical condition. In conversation with me, Ms X said she expects her adult children to contribute to household expenses, but the Council did not consider this in its assessment. Ms X does not agree with how the Council calculated Ms D’s contribution towards her care.

Analysis

29. The Council’s policy explains it may carry out a light touch financial assessment where it has evidence and considers the service user can afford the charges. This is what the Council did in April 2023. When Ms X said she was not happy with the light touch assessment, she asked for a full assessment. The Council agreed to this, it is not at fault.
30. Ms X requested the financial assessment in May and had to chase this up several times. The Council did the review in September, four months later. The Council delayed completing the review and delayed responding to correspondence, this is fault. The Council apologised for this in its complaint response at the end of October, it was right to do so.
31. The Council considered Ms X and Ms D’s request for DRE. The assessor discussed it with their manager before making a decision which they explained in correspondence and gave reasons. The Council also reconsidered and explained the decision in its complaint response. I am satisfied the Council properly considered Ms X’s request for DREs during its assessment, it is not at fault.
32. There is no record of Ms X requesting above average heating costs as a DRE for Ms D. Neither is there a record of Ms X challenging this after the assessment was completed and heating costs were not included as a DRE. The Council cannot be at fault for not considering something that has not been requested.
33. The Councils policy says income to pay relevant housing costs and DRE expenses will be disregarded before the MIG is calculated. The Councils financial assessment has disregarded the DREs that it allowed. It was right to do so. It has not disregarded any contribution towards housing costs. In response to my enquiries, the Council said standard living costs such as food, toiletries and utilities are included in MIG. This is not the same as a contribution towards housing costs. Following its policy, the Council should have considered disregarding Ms D’s contribution towards housing costs before calculating the MIG. It did not do so, this is fault.
34. The Council has not yet completed the joint assessment which was agreed in December. This is a delay of around five months, this is fault. The Council has apologised for the delay, it was right to do so.
35. The Council carried out a reassessment of needs in January 2024 and sent a copy of the report to Ms X and Ms D in May, four months later. This is delay, this is fault. The Council has apologised for the delay, it was right to do so.
36. In response to my enquires, the Council said it has no record of Ms X requesting correspondence to be sent to her on behalf of Ms D. It apologised and said it will update this on its system.

Injustice

37. I have considered the impact the Council’s faults had on Ms X and Ms D.
38. The Council’s delay in carrying out a review of the financial assessment and joint assessment has meant Ms D and Ms X do not know if the invoices stating Ms D’s contribution towards care are correct. This caused Ms D significant distress, especially as the Council continued to write to her after Ms X requested correspondence is addressed to her. It has also caused Ms X time and trouble in sorting the matter. That is their injustice.

Remedies offered by the Council

39. The Council has already apologised for the delay in reviewing the financial assessment, delay conducting the joint assessment and delay in responding to correspondence. It has also apologised for the delay sending a copy of the reassessment of needs. It was right to do so.
40. The Council has also offered the following:
• a symbolic payment of £250 to Ms D in recognition of the distress caused by the Councils delay in processing the case;
• a symbolic payment of £250 to Ms X for her time and trouble pursuing the matter;
• a formal written apology to Ms X and Ms D;
• to send correspondence to Ms X, on behalf of Ms D; and
• to complete the joint assessment work between the social work and finance team which was identified in December 2023.

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Agreed action

41. The Council has offered the remedies in paragraphs 36 and 37 above. The Council should complete these within four weeks of my final decision.
42. In addition, as part of the joint assessment, the Council agreed to reconsider Ms D’s household expenses when carrying out the joint assessment.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I have completed my investigation. The Council is at fault for delay in reviewing the financial assessment, conducting the joint assessment and responding to correspondence. It has also failed to consider housing expenses in the financial assessment.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman