Summary: There is no evidence of fault in the Council’s decision to financially assess Mr B and inits calculation of a contribution based on limited information.

The complaint

1. Mr B says the Council has stopped his care and support package in December 2017 and it had no reason to do so. He says the Council took this action because of financial cut backs and it discriminated against him as a disabled person and a vulnerable adult.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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 discussed the complaint with Mr B and I have considered the evidence that he and the Council have sent.

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What I found

5. The Care Act 2014 and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge.
6. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs and a personal budget which calculates the costs of those services.
7. If a person has substantial difficulty in being involved in the process, the council must provide them with independent advocacy to assist the person’s involvement in the care and support assessments, planning and review process.

Financial assessments

8. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs.
9. Where a local authority has decided to charge, it must carry out a financial assessment of what the person can afford to pay. Councils must ensure that a person’s income is not reduced below a specified level (the minimum income guarantee) after charges have been deducted.
10. If a council takes a disability benefit into account when calculating how much a person should contribute towards the cost of their care, they must also assess disability-related expenditure (DRE) in the financial assessment.  This is because the Care Act statutory guidance says councils must leave individuals with enough money to pay for necessary disability related expenditure to meet any needs not being met by the council. DRE are costs that arise from a disability or long-term health condition.
11. If a person refuses a financial assessment or the council is unable to carry out a financial assessment because of the adult’s refusal to cooperate with the assessment, then the local authority is treated as having carried out the financial assessment.

What happened

12. Mr B experiences loss of vision, poor balance, falls, seizures and paralysis. His care plan says he is entitled to:
• Eight hours of support from charity K. Charity K is a specialist service for people with visual impairments and they are fully trained to provide a reader/guide service. Charity K provides Mr B with a reader/guide service and escorts him in the community and when he goes to the gym.
• Two hours cleaning service from charity L.
• Advocacy service when necessary from agency M which specialises in providing advocacy to people with disabilities
13. The Council provides the services to Mr B and pays for them.
14. The Council introduced a new charging policy on 2 October 2016 and said it would charge for adult social care support services. This meant it would have to financially assess people who were in receipt of care to decide what, if any, financial contribution they would have to make to the cost of the services.
15. The Council contacted Mr B on 13 January 2017 and said it wanted to carry out a financial assessment.
16. Mr B said he could not cooperate with the financial assessment unless an advocate was present. The Council offered an advocacy service from agency M. Mr B spoke to the Council on 8 February 2017 and refused this service. He said he had used this service in the past and they were ‘useless’. The Council offered support from charity K, but Mr B said he needed an advocate.
17. The Council contacted another organisation which provides advocacy in April 2017. This organisation is the umbrella organisation for agency M and another advocacy agency. The Council explained that Mr B had refused help from agency M and wanted to know what to do. The organisation said that advocates would not normally support clients with filling out benefit forms or financial assessment forms. It suggested that the Council should contact the Council’s Financial Assessments and Benefits team (FAB) which should be able to assist.
18. The Council carried out a financial assessment on the information it had which was limited. The Council wrote to Mr B on 21 April 2017 and said he would need to contribute £72 per week towards his support package.
19. It continued to provide the care and support and Mr B did not pay the contribution.
20. The Council continued to attempt to visit or call Mr B to carry out a more detailed financial assessment in the following months. The Council also offered direct payments for Mr B to hire his own advocate.
21. In May 2017, Mr B contacted the Council as he needed to complete a claim for a Personal Independence Payment which was to replace his Disability Living Allowance. The Council suggested that charity K or the FAB team could support Mr B in the claim. Mr B spoke to charity K who said they had benefit specialists who could support him. Mr B declined these offers as he said he wanted an advocate. The Council explained that the filling in of the benefit forms should be straightforward and did not require an advocate. It said an advocate would be more suitable if Mr B wanted to appeal later on.
22. The social worker contacted the DWP on 14 November 2017. The DWP threatened to stop Mr B’s payments as he had not filled in the forms for PIP.
23. The Council visited Mr B on 14 November 2017 and Mr B said he would be interested in taking a direct payment for an advocate. He said his support worker from Agency K may be able to locate a retired solicitor or other qualified person to advocate for him.
24. Mr B then agreed that the Council’s FAB team could assist him in making the benefits claim and the FAB team helped him in the claim on 27 November 2017.
25. The following day, Mr B cancelled the Saturday worker from charity K and said he only wanted a service once a week. The Council explained to Mr B that his support plan had not been changed and that it would continue to pay for the full services, but he should cooperate with a financial assessment. The Council explained the same to charity K.
26. The Council explained to Mr B that it had based his contribution on the information it had, but the contribution would probably be reduced if he cooperated with a financial assessment. The Council offered direct payments for an advocate again and Mr B said he would need to discuss this with the Ombudsman.
27. In January 2018, Mr B stopped all his support by charity K. He said he would not cooperate with the financial assessment unless he was supported by an advocate who was also a retired solicitor. Mr B said it was illegal for the Council to charge him for his care as he was disabled.
28. The Council made a referral to another advocacy service in January 2018.
29. This advocacy service supported Mr B on 29 March 2018 with his financial assessment. The assessment concluded that Mr B did not have to make a financial contribution to his services once all his outgoings and DRE had been taken into account.
30. The Council contacted Mr B on 4 and 11 April 2018 and told him that he did not have to make a contribution to his services. It said it would backdate this to April 2017 so all his debt would be cancelled. The Council contacted charity K on 11 April 2018 to restart the services. There was a further delay as the carer who previously assisted Mr B was not available. Mr B wanted to wait until this carer became available but then, after a few months of waiting, agreed to change to another care agency
31. The Council offered to continue to pay charity L to provide a cleaner. Mr B said he did not want a cleaner from charity L, but wanted to keep his own cleaner and he continued to pay her. Mr B also did not want direct payments at the time, but has now said that he would consider this.

Analysis

32. The Council has the power to charge for residential care services, but must base the contribution on a financial assessment. The Council offered support and advocacy services to help Mr B complete the assessment. It also said Mr B could pay for his own advocate.
33. As Mr B would not cooperate with the assessment, the Council based its calculation of the contribution on the information it had. There was no fault in its decision to do so. The Council continued to provide the services from April 2017 even though Mr B was not paying the contribution.
34. The Council never stopped the services, but Mr B did so in January 2018 as he did not want to pay the contribution. The Council was clear to Mr B that it was willing to continue the service. I cannot find fault with the Council if Mr B stops his own services. The Council could not force Mr B to accept services if he did not want them.

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Final decision

35. I have completed my investigation and have not found fault by the Council.

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Investigator's decision on behalf of the Ombudsman