Summary: Mrs F complained on behalf of her son that the Council had wrongly charged him for his residential respite care and failed to properly consider his disability related expenditure. We found the Council had not properly considered whether to exercise discretion and this was fault causing injustice. The Council has agreed to charge for the respite as though it was non-residential care, apologise and make a symbolic payment to remedy the distress caused. There was no fault in the Council’s decision in relation to disability related expenditure.

The complaint

1. Mrs F complained on behalf of her son, Mr B, that the Council had wrongly charged him for his respite care and failed to properly consider his disability related expenditure.
2. Mrs F says this caused significant anxiety and distress to all the family and financial pressures, as Mr B was not left with enough money to maintain his ongoing financial commitments at home.

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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 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)
4. 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)
5. We may investigate a complaint on behalf of someone who cannot authorise someone to act for them. The complaint may be made by:
• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), 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 spoke to Mrs F about the complaint and considered the information she sent, the Council’s response to my enquiries and:
• The Care Act 2014
• The Care and Support Statutory Guidance (“the Guidance”)
• The Care and Support (Charging and Assessment of Resources) Regulations 2014 (“the Regulations”)
8. Mrs F 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

Care and support

9. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan.
10. The Act gives councils the power to charge a person for the care and support services they provide or arrange. If it decides to do so, it must carry out a financial assessment to see what contribution the person may have to pay towards the cost of their care. The amount a person may pay is based on what they can afford and will take account of their income and assets. Charges usually increase each year (known as an annual uplift.)

Charging for non-residential care and support

11. People receiving care and support other than in a care home (such as at a day centre) need to keep a certain level of income to cover their living costs. A person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by the Government and reviewed each year. A council can allow people to keep more than the MIG. In 2023/24, Mr B’s MIG was £150.25 per week.

Charging for residential care

12. If a council has determined that a person’s needs should be met in residential care, it will assess how much the person can contribute towards the cost of their care. Paragraph 8.35 of the Guidance says that, in doing so, councils “must leave the person with a specified amount of their own income … to spend on personal items such as clothes and other items that are not part of their care. This is known as the personal expenses allowance (PEA). … Local authorities have discretion to apply a higher income allowance in individual cases, for example where the person needs to contribute towards the cost of maintaining their former home.”
13. The PEA amount is set by the Government. In 2023/24 it was £28.25 per week.

Charging for respite care

14. Paragraph 8.34 of the Guidance says that a “short-term” care home resident is someone provided with accommodation in a care home for a period not exceeding 8 weeks [56 nights] per year, for example where a person is placed in a care home to provide respite care.
15. A “temporary” resident is someone whose stay in a care home is unlikely to exceed 52 weeks but will be for more than 56 nights.
16. Where a person is a short-term resident, the Guidance says councils may choose to charge them as though they received non-residential care and support.
17. The Council’s care home charging policy says short-term residents will be charged in the same way as permanent residents. But the Council will allow the person to keep an extra £10 per week, on top of the PEA, if they are responsible for the upkeep of their home.

Disability Related Expenses

18. If a council takes a disability benefit, such as Attendance Allowance, into account when calculating how much a person should contribute towards the cost of their care, they must also assess disability-related expenses (DREs) in the financial assessment. This is because councils must leave individuals with enough money to pay for necessary disability related expenditure to meet any needs not being met by the council.
19. DREs are costs that arise from a disability or long-term health condition. They are expenditure that is over and above what a non-disabled person would spend. The 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. Councils should not be inflexible in the costs they accept as DREs and should always consider individual circumstances.

Direct payments

20. Direct payments are made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs.
21. Councils must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly. Councils should not place someone in a situation where a direct payment is the only way they can get personalised care and support.

What happened

22. I have set out the key events; this is not meant to detail everything that happened.
23. Mr B has learning and physical disabilities. He lives with his parents, Mr & Mrs F. In 2021, after Mr B had turned 18 years old, the Council’s care and support assessment found he required support five days a week at a day centre, 40 hours per month personal assistant support (paid for using a direct payment) and 40 nights per year respite in a care home.
24. Mr B usually takes his respite care in shorts periods of about 4 nights. This means there are weeks when he receives (and is charged for) both residential care and non-residential care. The Council refers to this as “dual charging”.
25. The Council’s policy is to charge for Mr B’s respite as if it was permanent residential care. But it has to ensure that in each week his charges for respite and day care do not overlap, as he does not receive the day care whilst in respite and vice versa. The Council says its finance systems are unable to automatically calculate this. It therefore has to assess Mr B’s finances separately for his residential care and his non-residential care and Mrs F has to tell the Council when Mr B has had respite so that his charges can be adjusted. The Council accepts that this has led to inconsistencies in Mr B’s charges. It is currently exploring a solution.
26. In 2021, the Council assessed Mr B’s finances and determined that he should pay contributions of £41.85 per week for the day centre and £106.40 per week for respite. Mrs F complained to the Council about this, she considered the contributions were too high and that Mr B’s DREs had not been taken into account. The Council partially upheld the complaint, it said some of the respite dates were wrong.
27. Mrs F has continued to challenge the financial assessments and charges. She has refused to pay the invoices until the dual charging issue is resolved and the DREs agreed. The Council says in February 2025 the debt was £7,237.77.
28. In August 2023, Mrs F asked the Council why Mr B’s MIG and PEA were so different. She said it was not possible for Mr B to live at home on £28.25 per week; this was insufficient to cover all costs at the day centre and items such as extra clothing, continence care or his contribution to household bills. She asked why his expenditure on residential care was not taken into account when assessing the amount he had left to spend on day care, and vice-versa. The Council said it was looking into the dual charging issue.
29. Mrs F made a formal complaint in February 2024. She said the increasing debt was causing her distress and she had made numerous calls and emails to try to clarify the charges. The Council had told her in August 2023 that the charge for Mr B’s respite care should be reduced by £7.12 per night and it would send her an itemised, backdated invoice but this had not happened. The Council did not reply to the complaint as it was still considering how to more easily calculate the dual charging.
30. In April 2024 the Council wrote to Mrs F with details of Mr B’s contributions following the annual uplift:
• For his non-residential care and support, his contribution was £54.40 per week after disregarding his PIP, the MIG of £160.30 and DREs of £17.
• For the residential respite, Mr B’s contribution was £79 per week after disregarding his PIP, the PEA of £30.25 and a special allowance of £49.90.
31. Mrs F asked for a review of the financial assessment on 10 May 2024 and for DREs of £185 per week to be taken into account.
32. The Council spoke to Mrs F. It explained it was continuing to look into the dual charging issue, so her complaint was on hold. It would assess the request for DREs on 31 July. Following that assessment the Council completed its consideration of the DREs in December 2024 and wrote to Mrs F with the outcome on 20 March 2025. It has accepted this was delay. The Council agreed to DREs of £34.67 per week.

My findings

33. The Guidance allows councils to charge a person receiving short-term residential care as though they were receiving non-residential care and support. If the Council did this in Mr B’s case, it would avoid the dual charging problem as all Mr B’s care and support would be treated the same. For the 5 and a half weeks of the year that Mr B is in respite care, he would be left with the MIG amount, rather than the PEA plus £10.
34. I accept that the Guidance allows the Council to charge as it is doing. But given the difficulties calculating Mr B’s charges, I asked the Council whether it had considered exercising its discretion in Mr B’s case to charge his respite as though it was day care. My view is the rules on charging for short-term residents are deliberately flexible to allow for such cases.
35. In response, the Council said it had not considered using discretion, it had applied its charging policy of treating respite as permanent residential care.
36. We consider councils should not adopt a blanket or uniform approach or policy that prevent them from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.
37. There is no evidence that the Council fully considered why discretion could not be exercised in Mr B’s case. Or, for example, that it considered discussing with Mrs F whether she wished to use direct payments to pay for the day care. I find that the Council has not taken a properly reasoned decision as to whether to treat Mr B’s case as an exceptional circumstance, which is fault. As a result it has found it difficult to correctly calculate his charges since 2021, causing distress and a build-up of debt.
38. I welcome the Council’s acceptance that there have been inconsistencies in charging Mr B and its offer to remedy the injustice that caused Mrs F. But in my draft decision I suggested the Council should review its decision about not exercising discretion in Mr B’s case. If it decided to maintain its current position, it would need to have a plan to avoid problems with invoicing Mr B in the future.
39. In response, the Council agreed to exercise its discretion to charge Mr B’s short-term respite as though it was non-residential care when he is in receipt of non-residential care in the same week. This will effectively ensure Mr B is charged for non-residential care only. The Council also agreed to retrospectively review what Mr B has been charged over the period, and where necessary, revise the charging. It will then liaise with Mrs F to discuss the charges and if required, agree a repayment plan going forward.
40. In relation to the DREs, the Council has accepted there was a delay in determining the DREs that Mrs F requested in May 2024. It has explained why it refused to accept some of them and I have seen no fault in the way it reached its decision. As set out in paragraph 4, I therefore cannot challenge its decision to allow £34.67 per week as DRE.

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Action

41. Within two months of my final decision, the Council has agreed to:
1. Apologise to Mrs F for the inconsistencies in the invoices and the delay in making a decision about the DREs.
2. Pay her £500 to remedy the distress this caused.
3. Exercise its discretion to charge Mr B’s respite care as though it was non-residential care, when he is in receipt of non-residential care in the same week.
4. Review what Mr B has been charged since 2021 and, where necessary, revise the charges.
5. Liaise with Mrs F to discuss the charges and, if required, agree a repayment plan going forward.
42. The Council should provide us with evidence it has complied with the above actions.

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Decision

43. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman