Summary: Miss P complains the Council has failed to deal properly with the charges for her care, expecting her to pay backdated charges she cannot afford to pay and an ongoing charge which will not leave her with enough money to live on. The Council’s decision on backdating and its failure to review Miss P’s needs before stopping her direct payments in April 2018 caused significant avoidable distress to Miss P. The Council needs to apologise and pay financial redress.

The complaint

1. The complainant, whom I shall refer to as Miss P, complains the Council has failed to deal properly with the charges for her care, expecting her to pay backdated charges she cannot afford to pay and an ongoing charge which will not leave her with enough money to live on.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Miss P;
• discussed the complaint with Miss P;
• considered the comments and documents the Council has provided in response to my enquiries; and
• taken account of the comments made by Miss P and the Council on different versions of statement before making my final decision.

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What I found

5. Miss P has disabilities which affect her mobility, eyesight and other organs. She follows a special diet because of haemophilia and bowel conditions. Some of her conditions vary. She has a wheelchair, lift and adapted kitchen and bathroom. She has a personal budget to employ a Personal Assistant for 10 hours a week to help with nutrition, showering, getting dressed, accessing the community and cleaning her home.
6. Before May 2017 the Council assessed Miss P as a nil contributor towards the cost of her care. This was because her weekly assessable income (£160.45) from Income Support and DLA (Disability Living Allowance) was less than the Government’s Minimum Income Guarantee plus the Council’s standard allowance for disability related expenditure (DRE).
7. In May 2017 Miss P started receiving Employment & Support Allowance (ESA). The Council wrote to her on 17 May saying she needed to pay £75.20 a week towards the cost of her care from 12 May.
8. The Council sent Miss P an invoice for £365.26. She wrote to complain, saying she could not afford to pay her assessed contribution.
9. When the Council replied in June it accepted it had made a mistake, as Miss P’s DLA had stopped which meant her ESA was lower than assessed. The Council said she did not have to pay anything. It noted she had raised concerns about her DRE. It said she could have an individual DRE assessment, but this was not necessary while she did not have to pay anything. The Council said she needed to let it know if her financial circumstances changed. It noted she planned to appeal the decision to stop her DLA and said it may be able to help with this but there may be a delay in doing so. Miss P did not take up the Council’s offer as she had other support with her appeal.
10. Miss P’s November care and support plan provides for a personal budget of £100.41 a week to buy 10 hours of support a week from Personal Assistants. It says:
• her DLA and ESA stopped in error in January 2017;
• she had been appealing the decision since then;
• she had been surviving on a third of her income and deliveries from food banks.
11. Miss P’s appeal over the decision to stop her DLA was successful and the Department for Work and Pensions (DWP) reinstated it from 12 May 2017. The Council found out about this in December but not from Miss P. She says the DWP must have told the Council about its decision before it told her. She says she had to pay back money to friends and family which she had borrowed to survive.
12. The Council completed a DRE assessment in January 2018 (£94.00 a week) but decided not to approve it in February.
13. The Council received a complaint from Miss P on 6 March 2018, as she had concerns about the charges she would have to pay.
14. The Council wrote to Miss P on 22 March. It said she did not have to pay anything towards the cost of her care from 9 April. This was because her assessed weekly income from ESA (£110.75) was a lot less than her weekly allowed income (Minimum Income Guarantee of £151.45 plus standard DRE of £17). But the assessment did not take account of the DWP’s decision to reinstate DLA from 12 May 2017.
15. The Council replied to Miss P’s complaint on 18 April. It said it had completed a DRE assessment in February 2017 but turned it down because “hand splints and other equipment are no longer available on prescription”. It said counselling sessions related to health needs so Miss P should discuss them with her GP, as the Council would not include them as DRE. The Council said it had completed another DRE assessment which increased her allowance to £19.28 a week:
• £7.00 – non-dairy milk
• £1.70 – hypoallergenic washing conditioner
• £2.00 – dairy free yoghurt
• £5.58 – gardening
• £3.00 – fuel costs
16. The Council said this meant she had to pay £72.92 a week from 16 May 2017 and £80.30 from 9 April 2018.
17. The Council says it did not update Miss P’s financial assessment until April 2018 because it was reviewing her DRE. The Council stopped paying money into Miss P’s direct payment account.
18. The Council wrote to Miss P again on 27 April. It said her weekly DRE allowance from 12 May 2017 was £19.28. It said she had to pay:
• £10.47 a week from 12 May 2017 (based on assessable income of £181.20);
• £72.92 a week from 16 September 2017, when Miss P started receiving the Severe Disability Premium of ESA (based on assessable income of £243.65);
• £80.30 a week from 9 April 2018 (based on assessable income of £248.75).
19. Miss P says her direct payments stopped in April as she could not afford to pay her assessed contribution. After that, she says she borrowed money to pay her personal assistants.
20. Miss P contacted the Ombudsman in May.
21. Miss P wrote to the Council on 8 June. She explained about the problems she had had with her benefits during 2017. She said she could not afford the assessed charge and asking for retrospective payment “may be erroneous”. She said the Council was withholding her direct payments which may be discriminatory under the Equality Act 2010.
22. When responding to my enquiries the Council offered to waive 50% of the arrears and 50% of the assessed contribution for three months to allow Miss P time to adjust. It said it would continue to liaise with Miss P over her DRE to ensure an accurate reflection of her expenditure, as a review had highlighted further items for consideration. It noted that, when responding to a complaint in May 2018, it offered a meeting to discuss her concerns, but Miss P did not take up the offer. Miss P says she could not attend a meeting because of risk to her mental and physical health. She was receiving support with her mental health at the time.
23. Miss P says she has to pay:
• £10 towards the cost of counselling arranged by her GP;
• for physiotherapy if she has more than the four free sessions;
• for surgical collars and splints, which the NHS used to provide free;
• for wheelchair insurance;
• for a special diet.
24. In November the Council reviewed Miss P’s DRE. It agreed to increase it to £104.98 a week, which means she does not have to contribute towards the cost of her care (£100.41 a week). The Council said this would take effect from 12 June 2017, when it started to assess Miss P’s DRE. However, it said it would also waive charges between 12 May and 12 June 2017, so there was nothing for Miss P to pay. The Council said it would review Miss P’s DRE again in three months as: “as many of the items listed are to support a health need rather than a social care need”.
25. The Council wrote to Miss P on 13 December saying she did not have to contribute towards the cost of her care from 12 May 2017. It told her it would review her DRE in three months.
26. The Council’s policy on DRE says it is unlikely to approve requests for “any additional disability related services or equipment provided by the NHS – such as physiotherapy, chiropody, incontinence pads and transport”. The policy also lists DRE which it will consider, including:
• additional costs of special dietary need due to illness or disability;
• heating/water costs above average levels;
• purchase/maintenance/repair or equipment (e.g. wheelchairs, stair lifts etc);
• internet access for blind or partially sighted people.
27. Miss P says the Council was wrong to backdate her assessed charge as, under a policy agreed in 2015, backdated charges only apply to new customers. The policy Miss P refers to was agreed by the relevant Cabinet Member in November 2015. It says:
• “That the County Council should extend the process of backdating charges to domiciliary and other non-residential care and support. The charge will be backdated to the date that the County Council commenced funding an individual. This will only apply to new service users from the date of implementation.”
28. The Council has referred to its Charging Policy for Home Care and Other Non-Residential Services 2018-19. This included information on backdating, in Section 20 and Appendix 1, for new service users and where financial circumstances have changed. It says:
• “If a person’s financial circumstances change and KCC is not informed by the person or representative (e.g. not declared changes to disability benefits which meant KCC has been undercharging), changes will be backdated to the date the charge increase would have applied. Assistant Director discretion required to apply a different date or not to backdate.”
29. The Council’s current leaflet on Charging for Care Provided in Your Own Home and Support in the Community says:
• “If you receive backdated payments of a benefit …, this will affect your contribution, then any increase will also be backdated.”
30. The Department of Health and Social Care’s Care and Support Statutory Guidance says:
• “If the local authority does decide to withdraw direct payments, it will need to conduct a review of the plan and agree alternative care and support provision with the person, their carer and independent advocate if they have one, unless the withdrawal was following a review after which the local authority concluded that the services were no longer needed. A minimum period of notice should be established that will normally be given before direct payments are discontinued. This should be included in the information to be provided to people who are considering receiving direct payments.” (paragraph 12.81)
31. The Council suggested this applied to Miss P, as it learned of the backdated benefits from another source.
32. Miss P points out that her DRE of £104.98 a week means she has less than the Minimum Income Guarantee to pay for her basic living expenses.
33. The Council completed a review of Miss P’s DRE in May. As part of the review, it contacted Miss P’s GP to clarify whether there are items she is currently paying for which the NHS could provide. The Council has agreed DRE of £103 a week but will review this again in six months’ time to allow for her “health needs to be fully explored and assessed by the wider local medical team to both inform her and consider, if there are unmet medical needs, how best these can be met in future”.

Is there evidence of fault by the Council which caused injustice?

34. There were problems with Miss P’s benefits, for which the Council was not responsible. These problems had implications for her financial assessments. Until April 2018 she did not have to pay anything, but the Council then applied backdated charges to May 2017.
35. Miss P says the Council should not have done this because of the policy agreed in November 2015. However, the November 2015 policy reflected the fact that, following the implementation of the Care Act 2014, the Council was no longer prevented from backdating charges before “an assessment of charges had been notified to the service user”. I cannot see that this prevents the Council from backdating charges when someone receives backdated benefits.
36. The Council was notified of the change in Miss P’s circumstances in December 2017. The relevant policy was therefore the one in place in December 2017, not the 2018/19 policy. The policy in place in December 2017 says:
• “Charging will be from the start of the service and not from the start of the financial assessment. A person will not be charged before a financial assessment is completed (unless refusal to comply with the financial assessment process). The financial referral and assessment should be completed as soon as possible to avoid people being faced with large and unexpected bills. Where any arrears of charges are due, people should be given a reasonable length of time in which to pay.”
• “It is expected charges will not be backdated for more than 12 weeks BUT this can, in exceptional circumstances be extended, such as where a person/family deliberately do not cooperate.”
37. The Council took four months to complete Miss P’s financial assessment. It also backdated her charges for much more than 12 weeks without identifying any exceptional circumstances. That was fault by the Council.
38. The current leaflet on charges says they will be backdated whenever backdated benefits are paid. However, the Council cannot fetter its discretion in that way. The Council needs to review its policies and published statements on backdating to make sure they are not contradictory and do not fetter its discretion.
39. Although the Council told Miss P what her charge would be in May 2017, it could not rely on this as the question of her DRE was left open while she did not have to pay anything. This meant she could not plan for any charge, as she did not know what it would be. The Council failed to take this into account when deciding to impose substantial backdated charges which put Miss P into debt. That was fault by the Council.
40. The Council also stopped paying money into Miss P’s direct payment account. This was on the assumption that, having received substantial back payments from the DWP, she had enough money to pay for all her care and it could claw back the backdated charges in this way. But that was not the case. In effect, the Council withdrew Miss P’s direct payments. Under the Statutory Guidance the Council should first have reviewed Miss P’s needs. The failure to do so was fault by the Council. Reviewing Miss P’s needs would have enabled a more constructive engagement with her personal circumstances.
41. Subsequent events have shown that the Council did not consider Miss P’s DRE properly in early 2018. In December 2018 the Council accepted all Miss P’s DRE, with the proviso that it would review it again in three months’ time. It has only recently completed that review, which shows it is more complex than the Council first assumed. Miss P will have nothing to pay for at least another six months.
42. The Council’s decision to write off all Miss P’s backdated charges and accept all her DRE, pending a further review of her DRE, goes a large way towards resolving her complaint. However, the decision to backdate charges and the failure to review Miss P’s needs before stopping her direct payments in April 2018 caused significant avoidable distress to Miss P, which is injustice. This had a negative impact on her mental health.
43. The Council is not at fault for the fact that Miss P’s DRE, accepted in November 2018, takes her below the Minimum Income Guarantee. The Council would only be at fault if it applied a charge which took Miss P’s income below the Minimum Income Guarantee. But it is not currently charging her anything.

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Agreed action

44. The Council has:
1. written to Miss P to apologise for the distress it has caused and paid her £400;
2. considered what action it needs to take to:
1. ensure officers give better consideration to personal circumstances before imposing substantial backdated charges;
2. make sure it does not stop direct payments without first reviewing someone’s needs;
3. reviewed its policies and published statements on backdating charges for non-residential care to make sure they are consistent and do not fetter its discretion.
45. The Council has also agreed within the next four weeks to pay Miss P a further £300 to reflect the time and trouble it has put her to in pursuing the complaint.

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Final decision

46. I have completed my investigation, as the Council has agreed to remedy the injustice it has caused.

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Investigator's decision on behalf of the Ombudsman