Summary: Mr X complains about the way the Council has charged him for care services. He also complains that the Council failed to make a reasonable adjustment for him when it considered his complaint, and failed to properly investigate his complaint. The Ombudsman does not find fault with the Council for the way it has assessed and charged Mr X for contributions to his care costs. However, the Ombudsman finds fault with the Council for not considering making a reasonable adjustment for Mr X, such as provide information to him in an accessible format. This has caused Mr X injustice. The Council will apologise to Mr X and make sure that all future written communication is provided to him in an accessible format.

The complaint

1. The complainant, who I refer to here as Mr X, complains that:
1. the Council failed to properly carry out a financial assessment;
2. the Council overcharged him for care, and charged him for care he did not receive;
3. the Council refuses to allow him Direct Payments;
4. carers did not provide full personal care as agreed in the care plan; and,
5. the Council failed to make reasonable adjustments for him when dealing with his complaint, and failed to investigate his complaint properly.
2. Mr X says his personal care has suffered as a result. He also says this has made his depression worse.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

6. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments before I reached a final decision.
7. I have considered the relevant legislation, statutory guidance and regulations, set out below.

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What I found

What should have happened: law and guidance

Charging for care

8. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan. This should consider what the person has, what they want to achieve, what they can do by themselves or with existing support, and what care and support may be available in the local area. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
9. Local authorities must assess a person’s finances to decide what contribution they should make to a personal budget for care. The government’s published guidance says that a local authority must have regard to the detailed guidance which says how capital and income should be treated.
10. The guidance says that a person must be left with the minimum income guarantee, as set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014. The purpose of the minimum income guarantee is to promote independence and social inclusion and to make sure that the person has sufficient funds to meet basic needs such as purchasing food, utility costs or insurance.
11. The guidance says it is important that people pay their fair contribution towards their care and support costs.

Personal budget

12. A personal budget gives the person clear information about the money allocated to meet the needs identified in the care and support plan. The local authority should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be an amount enough to meet the person’s care and support needs.
13. There are three main ways in which a personal budget can be administered:
• as a managed account held by the local authority with support provided in line with the person’s wishes;
• as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes; or,
• as a direct payment. (Care and Support Statutory Guidance 2014)

Direct payments

14. Direct payments are monetary payments made to people who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs. The local authority should support a person to use and manage the payment properly.
15. After considering the suitability of the person requesting direct payments against the conditions in the Care Act 2014, the local authority must decide whether to provide a direct payment. Where accepted, the council should record the decision in the care or support plan. Where refused, the council should provide the person making the request with written reasons to explain its decision. It should also tell the person how to appeal against the decision through the local complaints procedure. (Care and Support Statutory Guidance 2014)

Reasonable adjustments

16. The Equality Act 2010 puts a duty on any body that carries out a public function. It aims to ensure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
17. The duty is to make adjustments by taking steps to remove or prevent obstacles to accessing that service. If adjustments are reasonable, they must be made.
18. The duty is ‘anticipatory’. This means that a council cannot wait until a disabled person wants to use the service. Instead, they must think in advance about what disabled people with a range of impairments might reasonably need, such as people who have a visual impairment, a hearing impairment, mobility impairment or a learning disability.
19. The Ombudsman can look at whether a council has considered making reasonable adjustments. We cannot decide if an adjustment is reasonable or if there has been a breach of law. This is something only the courts can determine.

What happened

20. Mr X has a visual impairment and needs help with day to day tasks. The Council commissions care on his behalf to be provided by carers from an agency on a daily basis.
21. Mr X received Direct Payments between October 2017 and March 2018 in order to arrange and pay for his care. The Council stopped Mr X’s Direct Payments because he stopped paying his contributions to his care costs.
22. Between March 2018 and April 2018, Mr X’s care was provided by three different agencies. The first two care agencies ended their care provision because of Mr X’s behaviour. The third agency were unable to provide Mr X care because he refused to allow carers entry to his home.
23. At the end of April, Mr X complained to the Council. He complained that the Council had not assessed him correctly, that it refused to allow him Direct Payments, that he had tried to complain verbally but the Council refused, and that his carers refused to wash him.
24. In May, the Council sent Mr X its response to his complaint. It explained that his contributions to care costs had been assessed on information he had provided and from information from the Department for Work and Pensions. It told him what his assessed contribution was, and how to appeal if he was unhappy.
25. The Council’s complaint response said Mr X signed a financial assessment referral form in March 2017 but was not assessed until November 2017. It said that because of this, it had waived £3118.80 for the care provided during this period. It said that despite this, Mr X still owed £1871.46 for care contributions from November 2017 which he had not paid.
26. The Council explained that Mr X’s Direct Payments were stopped because he had not paid his contributions. It said that for Direct Payments to work, service users must pay their contributions. The Council said it took over the management of his care in order to safeguard his wellbeing.
27. The Council said about Mr X’s verbal complaint that he had spoken to two officers about why Direct Payments had stopped. It said the outcome of the last conversation was that Mr X agreed to be supported by a homecare provider.
28. About care provision, the Council accepted there had been a breakdown in Mr X’s relationship with the care provider.
29. The Council concluded by saying that it could not provide Direct Payments with the knowledge there would be a financial shortfall due to non-payment of contributions. It said it would monitor his care and review its decision on Direct Payments if he demonstrated his commitment to paying his contribution.
30. Mr X complained to the Ombudsman in March 2019 saying he never received the Council’s response to his complaint.

Analysis

Financial assessment

31. Mr X complains that the Council failed to properly carry out a financial assessment (part a of the complaint). Mr X says he did not take part in any financial assessments.
32. The Council says Mr X signed a financial assessment referral form confirming he was happy to be financially assessed electronically in February 2018. It says it completed the financial assessment using Department for Work and Pensions records and Council records. It says Mr X receives means-tested benefits, so it did not need further information from Mr X to complete the assessment.
33. Mr X disagrees and says he did not sign anything.
34. I find that the Council has carried out regular financial assessments, which I have seen. These assessments have correctly calculated the amount Mr X should pay towards his care costs.
35. The Council is entitled to take information from the Department for Work and Pensions records and its own records to financially assess a person. Further to this, I find that Mr X agreed to this in writing.
36. For these reasons, I do not find fault with the Council for the way it financially assessed Mr X’s contributions to his care.
37. Mr X complains that the Council should have taken costs he paid for overnight care into account in his financial assessment.
38. The Council says that Mr X told the Council he was paying for overnight care but did not explain why he needed overnight care, or how the private carer was supporting him overnight.
39. The Council says it would not consider Mr X’s overnight care costs because it was a cash-in-hand transaction, not a formal arrangement. It says Mr X’s care and support plan does not support the need for overnight care, and his personal budget is for daytime care only. It says it explained this to Mr X.
40. I do not find fault with the Council for not considering Mr X’s overnight care costs. These costs were not for an identified care need, so the Council is not obliged to consider them.
41. Mr X complains that the Council should have taken his credit card debt into account in his financial assessment.
42. The Council says it does not consider credit card debts when calculating financial assessments.
43. The guidance says that income and capital must be considered when financially assessing a person’s contributions. The guidance does not say that debts or outgoings must or should be considered.
44. The Council’s financial assessments of Mr X show that he was left with at least the minimum income guarantee. The purpose of the minimum income guarantee is to make sure that the person has sufficient funds to meet basic needs such as purchasing food, utility costs or insurance. This does not include credit card debts.
45. For this reason, I do not find fault with the Council for not considering Mr X’s credit card debts when financially assessing him.

Charges for care

46. Mr X complains that the Council overcharged him for care, and charged him for care he did not receive (part b of the complaint).
47. Mr X says that he was overcharged for his care contributions for the period of December 2017 to April 2018 because the Council did not consider his overnight care costs.
48. I have dealt with this aspect of the complaint above. I do not find that the Council overcharged Mr X for his care contributions because it did not have to consider his overnight care costs.
49. Mr X says he did not receive care between April 2018 and November 2018.
50. The Council says that a care provider began providing care at the end of April 2018, but Mr X refused carers entry to his home.
51. Mr X disagrees, and says he did not refuse carers entry to his home.
52. I do not find fault with the Council. This is because I find, on the balance of probabilities, that it is more likely than not that Mr X refused to allow carers entry to his home. This is based on evidence from the Council and the care agency. The care was arranged and provided but Mr X did not accept it. This is not evidence of fault with the Council.

Refusing Direct Payments

53. Mr X complains that the Council refuses to allow him Direct Payments (part c of the complaint).
54. Mr X says that he has not paid anything towards his care since December 2017 because he cannot afford to due to large credit card debts. He says he wants Direct Payments so he can choose his own carers.
55. Mr X accepts that the Council has explained that he needs to show commitment to making payments before it can reinstate Direct Payments.
56. The Council says it stopped Direct Payments in March 2018 because Mr X failed to pay his contributions to care costs. It says it took over management of his personal budget to safeguard his wellbeing. This is because if the care agencies are not paid, then they will not provide care, and this would leave Mr X without the care he needs.
57. I do not find fault with the Council. It is entitled to make this decision. Given Mr X’s large debts and that he says he has not paid anything towards his care costs since December 2017, I do not find fault with the Council for making this decision.

Care provision

58. Mr X complains that carers did not provide full personal care as agreed in the care plan (part d of the complaint). He says that female carers did not want to wash him because of their religion.
59. Mr X complained to the Council about this in April 2018, the same month that this care agency stopped providing Mr X with care.
60. I have seen no evidence that the Council took any specific action about this complaint. However, I have also not seen any evidence that Mr X told the Council about this before he formally complained. When Mr X complained, the care agency had stopped providing his care.
61. I find that when Mr X complained to the Council about this, there was nothing more the Council could do at that point. He was no longer receiving care from that agency.
62. For this reason, I do not find fault with the Council.

Reasonable adjustments and complaint investigation

63. Mr X complains that the Council failed to make reasonable adjustments for him when dealing with his complaint, and failed to investigate his complaint properly (part e of the complaint).
64. Mr X says the Council did not send its complaint response in a format that was accessible to him, meaning in large font or audio format. He says it is for this reason he did not know that the Council had responded to his complaint.
65. Mr X says he told the Council when he complained that he has a visual impairment.
66. The Council says it did not know that Mr X needed a reasonable adjustment.
67. The duty to provide reasonable adjustments is anticipatory. The Council knows that Mr X has a visual impairment. Also, he says he told the Council when he complained.
68. On the balance of probabilities, I find that it is more likely than not that Mr X told the Council about his impairment. For this reason, I find that the Council should have considered making a reasonable adjustment for Mr X such as sending its complaint response in an accessible format.
69. The Council accepts that not sending its complaint response in large font or audio format was a mistake.
70. I find fault with the Council for not considering making a reasonable adjustment for Mr X such as providing information in an accessible format. This caused Mr X injustice because he was not able to understand the complaint response.
71. Mr X says that there were delays in the Council’s handling of his complaint.
72. Mr X complained in April 2018. The Council responded in May 2018, 16 working days after he complained. I can see no evidence of a delay in responding to his complaint. For this reason, I do not find fault with the Council.
73. Mr X says he tried to verbally complain on a number of occasions about having no care when it stopped in April 2018.
74. The Council says Mr X spoke to two officers who discussed this with him and came to a resolution with him. This ultimately led to Mr X agreeing to support from a homecare provider.
75. I have seen no evidence that the Council failed to deal with Mr X’s verbal complaints about his care. For this reason, I do not find the Council is at fault.
76. Mr X complains that the Council failed to properly investigate his complaint.
77. I have seen no evidence of this. So, I do not find the Council at fault for the way it investigated Mr X’s complaint.

Agreed action

78. Within four weeks of this decision, the Council has agreed to apologise to Mr X in writing (large font) or audio format for not considering making a reasonable adjustment for him, such as sending its complaint response in an accessible format.
79. The Ombudsman will need to see evidence that this has been completed.
80. Also, the Council has agreed to make sure that all future written communication with Mr X is sent in an accessible format.

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Final decision

81. I have completed my investigation. I uphold part e of Mr X’s complaint because I have found fault causing Mr X injustice. The Council has agreed to take action to remedy the injustice.
82. I do not uphold parts a, b, c or d of Mr X’s complaint. This is because I have found no evidence of fault.

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Investigator's decision on behalf of the Ombudsman