Summary: Mrs T complained about charges the Council made for a community service she received. The Council recognised it was at fault for delaying in considering representations from Mrs T that she could not afford the charges. It offered therefore to write-off those charges. We considered this represented a fair outcome to the complaint, remedying the distress caused to Mrs T by the Council’s fault.

The complaint

1. Mrs T complained the Council failed to respond to representations she made that she could not afford the amount it expected her to pay towards her care.
2. Mrs T said while waiting for the Council to decide her appeal she ran up a debt. This had a negative impact on her mental health.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. Before issuing this decision statement I considered:

• Mrs T’s complaint to the Ombudsman and any supporting information she provided;
• information provided by the Council in reply to our enquiries;
• any relevant law, Government guidance or Council policy referred to in the text below;
• any relevant guidance published by the Ombudsman.

7. I also gave Mrs T and the Council a chance to comment on a draft version of this decision statement. I took account of any responses they made before finalising the decision statement.

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What I found

Relevant law and guidance

8. A council that provides adult social care services has a duty to arrange care and support for those with eligible needs. Councils 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)
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. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). National government sets the MIG amount and reviews it each year. A council can choose to allow people to keep more than the MIG. (Care Act 2014)
10. Government guidance says that when undertaking financial assessments, councils should use the gross amount received of any social security benefit. So, they should include in the income calculation, any money deducted at source from those benefits (for example, to repay an overpayment of benefit). (see Care & Support Statutory Guidance, Annex C).

Council policy

11. The Council has a policy for charging for non-residential care services which says it takes account of the above guidance, including that referred to in paragraph 10.
12. The policy says that where a person fails to pay any assessed charges it will take debt recovery measures. It says where there is a dispute it has a ‘review and appeals’ process considered by “the appropriate service manager”. If a review does not resolve the dispute, then the person can complain. It provides details on the Council’s complaint procedure, which has two stages before signposting to this office.

The key facts

13. Mrs T is an adult with some mental and physical health needs, known to the Council for several years. In 2021 the Council referred Mrs T to a community support service. At that time, the Council did not expect users of the service to pay towards its cost.
14. In March 2022 the Council decided the service would come under the scope of its charging policy. So, it would assess if users of the service could make a financial contribution to its cost. The Council introduced charging for the service from March 2023.
15. In preparation, the Council carried out Mrs T’s financial assessment in January 2023. It assessed Mrs T could pay around £30 a week towards the cost of the service. The following month it wrote to tell her that this charge for the service would start from March 2023.
16. At the end of February 2023 Mrs T wrote to the Council saying she could not afford the assessed charge. She said it would cause her financial hardship and provided details of her income and outgoings. The Council says Mrs T’s representations went to its Financial Assessment and Charging Team (FACT) which carried out the assessment. The FACT service misdirected the correspondence to its commissioning team. The commissioning team then sent Mrs T’s representations to the Council’s Head of Adult Social Care.
17. From April 2023 onward the Council began sending Mrs T invoices, every four weeks, for the assessed charge. It also increased the charge, taking account of an increase in Mrs T’s pension income from that month.
18. Between, Mrs T kept asking the Council to update her on its consideration of her case. In May 2023 the Council considered this at a meeting attended by its Head of Social Care. The Council did not record the outcome of the meeting, nor tell Mrs T about this.
19. Consequently, Mrs T continued to ask the Council to update her, saying she was becoming ill because of her concerns about the cost. In July and August, the community support service also contacted the Council wanting an update on Mrs T’s representations. They too, did not receive a reply.
20. In December 2023, Mrs T made a complaint to the Council, frustrated she had still heard nothing further.
21. The Council replied later that month and apologised for not responding to Mrs T’s requests for an update. Its reply said it had told Mrs T there would be a charge for the service from March. It also said it had assessed her charge correctly.
22. In January 2024 Mrs T asked to escalate her complaint. The Council replied to that in early April. The Council again recognised not dealing with Mrs T’s representations in good time. The Council said they should have gone to its complaint service to respond, but they did not. It said it would tell all relevant staff to treat appeals this way in the future, in line with its published policy covering charges for care.
23. From January 2024 Mrs T stopped receiving the community support service, although she can still use some of its services free of charge. Her arrears for non-payment of the financial charge were just under £1500.

My investigation

24. I considered copies of the financial assessments provided by the Council. These correctly recorded Mrs T’s pension. But I noted Mrs T collected less money than this, because the Department for Work and Pensions makes a deduction from her pension each week. I also noted Mrs T received her payments of pension four-weekly. On her own income and expenses breakdown, she had declared this as a monthly income.
25. I checked with the Council that it had assured itself Mrs T received all benefit income she had an entitlement to. The Council said its FACT team and the community service used by Mrs T had both checked this and found it correct. I saw no reason to question that.
26. I also noted comments from the Council that since the time when Mrs T made representations about the charge, it had set up a dedicated team within its adult care service to log complaints. This team aimed to ensure everyone receives a reply. This included any appeal (or correspondence treated as an appeal), about a financial assessment. In turn, all relevant staff had received advice to pass appeals to this service. This included its FACT service.
27. In reply to enquiries the Council recognised again its failure to deal with Mrs T’s appeal properly. It also recognised it could not show where it had considered the detail of her appeal, as it replies to the complaint did not show it had considered if Mrs T could afford the charge. The Council said to remedy this complaint it therefore proposed writing off all charges owed by Mrs T.

My findings

28. I did not find fault in the financial assessment undertaken by the Council which led it to charge Mrs T for using the community service. I found the Council carried this out in a way consistent with Government regulation, guidance and its own policy. It therefore invoiced Mrs T correctly. It also gave her fair warning of when it would begin charging for the service and what her charge would be. So, it prepared Mrs T for the invoices to follow.
29. However, the Council was at fault for how it dealt with Mrs T’s representations, expressing dissatisfaction with the charges, which was either an appeal or request for a review. It did not pass this to the correct service to deal with. I understand human error will cause such mistakes in all organisations. But I am concerned that so many requests from Mrs T to find out what happened to her representations, did not result in the Council replying to those. It was not one single failing, but multiple failings that meant Mrs T did not receive a reply in good time. And nowhere could the Council show it engaged with Mrs T’s concern she could not afford the charge.
30. The combined delay and a failure to provide an adequate response to Mrs D caused her an injustice. The Council caused her unnecessary frustration and uncertainty through its handling of this matter, and this caused distress.
31. I could not say that if the Council had dealt with Mrs T’s representations properly it would have reduced or written off the charges. I reiterate, it calculated the charge owed correctly. So, there was no reason for me to assume the Council would have done so. However, I could not rule this out as it had discretion to reduce or waive the charge.
32. I considered therefore if I should recommend the Council carry out a fresh appeal and make a symbolic payment to Mrs T, in recognition of her distress. However, the Council’s actions made any appeal academic because it had agreed to waive the money owing. While any distress payment I might recommend would be less than the amount waived.
33. I considered on balance therefore I should not make such a recommendation. As what the Council had offered, represented a better result for Mrs T than I could achieve.
34. I welcomed that the Council had improved its service since the events covered by this complaint. It had tightened the procedure by which it considers representations on the outcome of financial assessments. It had also given advice to staff on implementing this. So, I did not consider I needed to recommend any further service improvements either.

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Agreed action

35. I agreed with the Council therefore that within 20 working days of this decision it will write to Mrs T confirming that it has written off any charges it asked her to pay for the community service.

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Final decision

36. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Mrs T. The Council accepted this finding and it proposed action that I considered remedied her injustice. Consequently, I completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman