Summary: Ms S complained on behalf of her brother that the Council provided him with insufficient care and wrongly assessed his financial contribution. The Council was not at fault.

The complaint

1. Ms S complained on behalf of her brother, Mr X. Mr X was pursuing a number of complaints with the Council before his death in October 2018.
2. Mr X complained the Council:
1. provided him with insufficient care from 2013 onwards; and
2. incorrectly assessed the amount he should contribute towards the costs of his care from March to September 2017.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. I have investigated Mr X’s complaints from March 2017. I have decided not to exercise my discretion to look at events before that time. This is because I can see no good reason why Mr X could not have complained to us earlier.
5. 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)
6. 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

7. I spoke to Ms S and considered her view of the complaint.
8. I made enquiries of the Council and considered the information it provided. This included Mr X’s care plan, copies of his financial assessments, complaints correspondence and communications between Ms S and the Council.
9. I gave the Council and Ms S the opportunity to comment on my draft decision.

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What I found

Adult social care

10. The relevant law is the Care Act 2014 and the Care and Support Statutory Guidance 2014.
11. Councils will carry out an assessment of a person’s needs. Following a care assessment, councils will draw up a care plan. This should:
12. “detail the needs to be met and how the needs will be met and will link back to the outcomes that the adult wishes to achieve in day-to-day life as identified in the assessment process. This should reflect the individual’s wishes, their needs and aspirations and what is important to and for them, where this is reasonable.”
13. The Council uses the assessment to prepare a personal budget. A personal budget is the amount of social care funding the Council will provide to meet an individual’s eligible needs.

Paying for care

14. 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.
15. 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.
16. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs.
17. 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 after charges have been deducted. This is called the minimum income guarantee and it is Income Support plus 25%.
18. 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.
19. The Council produces guidance on what it will accept as DRE costs. This includes items such as utilities, laundry, clothing and transport. The guidance says DRE costs must be as a direct result of the disability or illness and must be over and above what someone without a disability would pay for a similar service.
20. In relation to privately arranged care, the Council’s guidance says it will refund the actual costs if it is something the social worker confirms the service user needs in addition to the care in their support plan. The Council may pay relatives for any care if the care is deemed as necessary.
21. Annex C of the Care and Support Statutory Guidance (‘the Statutory Guidance’) sets out how authorities should calculate a person’s contribution to their care fees.
22. In assessing what a person can afford to contribute a local authority must apply the upper and lower capital limits. The upper capital limit is set at £23,250 and the lower capital limit at £14,250. This includes savings.
23. A person with assets above the upper capital limit will be deemed to be able to afford the full cost of their care. Capital below the lower capital limit should be disregarded.
24. Paragraphs 15 and 16 of Annex C explain what benefits can and cannot be taken into account when calculating what a person can afford to contribute. The mobility component of Personal Independence Payments (PIPs) cannot be taken into account. The daily living component of PIPs and Employment and Support Allowance (ESA) can be taken into account.

Continuing health care

25. Continuing Health Care (CHC) is a package of care for people who have significant and ongoing health needs. It is arranged and funded by the NHS and it covers the cost of any support from health professionals as well as any help required with personal care. Therefore, if a person receives CHC, they will generally not have to pay for any of their care.
26. Decisions about who is eligible for CHC is made by the local Clinical Commissioning Group (CCG). CCGs are part of the NHS.

What happened

27. Ms S’s brother, Mr X, had significant long-term health conditions. At the beginning of 2017, he was admitted to hospital after a fall. The Council assessed Mr X’s care needs prior to his discharge on 20 March 2017 and found he required the following support to help with his eligible needs around personal care and preparing meals:
• 30 minutes every day in the morning, at teatime and at bedtime; and
• 30 minutes at lunchtime four days a week. On the other three days, Mr X received lunchtime care at hospital.
28. The Council arranged for a private care provider to provide this support and referred Mr X to its finance team to carry out a financial assessment.
29. On 3 April 2017, the Council’s Occupational Therapist (OT) visited Mr X’s property to assess if he needed any adaptations to his home but he had been readmitted to hospital.
30. Mr X was discharged from hospital later in April. His additional care support began that day. On discharge, Mr X telephoned the care provider to ask about overnight care as a private arrangement for the first week he was out of hospital. The care provider emailed its carers to see if anyone would be able to provide that support, but no one was available.
31. On 5 May, the OT visited Mr X’s home to carry out an assessment of the property. On 8 April, the OT submitted an application on Mr X’s behalf for a Council run grant because he needed adaptations to his home.
32. The Council’s case notes around that time recorded that Mr X had received a back payment of £4,886 in February 2017 from the Department of Works and Pension (DWP) because it should have increased one of his benefits from August 2015 but that did not happen. The notes stated the assessor advised Mr X that he might have to pay an additional amount for any care he received from when his benefits increased in August 2015.
33. The Council carried out a financial assessment in July 2017. Mr X’s advocate was present with Mr X. That assessment recorded Mr X received the PIP daily living component and ESA which could be taken into account when assessing his financial contribution. Mr X also received the PIP mobility component which could not be taken into account. That gave Mr X an income of £243 a week.
34. Mr X’s savings totalled around £742 pounds. None of these were taken into account when determining his contribution. The Council did not include the back payment of benefits awarded by the DWP.
35. The Council also disregarded £18.15 a week for DRE costs. This included increased utility and laundry costs and the ‘wear and tear’ amounts for other items such as his power reclining chair.
36. The Council calculated that if it left Mr X with the nationally set guaranteed minimum income a week, from April 2017 he could afford to contribute £68.56 a week towards the cost of his care.
37. Mr X contacted the Council and said he wanted to appeal the outcome of the financial assessment. The Council sent him and his advocate details of how to appeal and put payment on hold whilst the appeal process took place. However, Mr X did not go ahead with the appeal.
38. In December 2017, the local NHS Clinical Commissioning Group (CCG) wrote to Mr X and told him that following a CHC assessment in September 2017, he was eligible for CHC. The CCG said this would start from 7 September 2017. Therefore, from 7 September 2017, Mr X did not have to contribute anything to the costs of his care.
39. In January 2018, Mr X’s advocate telephoned the Council to enquire why Mr X had not received an invoice for his care from 20 March to 6 September 2017. During the call, the Council confirmed that it had disregarded the lump sum of £4,886 from the DWP and it had charged Mr X for his care from 20 March 2017 when he was discharged from hospital until 6 September 2017, after which Mr X began to receive CHC. The notes record the Council advised Mr X’s advocate that Mr X should speak to the team manager if he wanted to appeal the outcome of his financial assessment or contact the Council’s credit control team if he was struggling to pay the invoice in full.
40. In January 2018, the Council carried out another financial assessment. That slightly reduced the weekly amount Mr X had to contribute. By this stage Mr X had not paid anything towards the cost of the care he had received since 20 March 2017. Therefore, he owed the Council around £1,650.
41. In February and March 2018, Mr X complained to the Council about the care he had received since 2013 and the financial contributions he had to make.
42. The Council responded in May 2018. It said it would not look at the time period 2013 – 2016, because these events took place over 12 months ago and so were late. With regard to 2017 onwards, it did not uphold any of Mr X’s complaints and said:
• it had carried out his financial assessments in accordance with the Care Act 2014;
• it had put Mr X’s invoice for the outstanding amount owed from 20 March 2017 on hold because he said he would appeal the amount. However, he had not done so and therefore, the Council had issued him with a duplicate invoice in January 2018;
• if Mr X believed he had any additional DRE costs during that period, he should contact the Council with details;
• he had been reassessed in March 2017 and found to have additional care requirements. Therefore, It increased his package which started on the day he was discharged from hospital; and
• the OT has visited in May 2017 and had submitted a grant application.
43. In June 2018, Mr X submitted a new schedule of additional DRE costs. This included a cost of £1,044 for overnight care when he was discharged from hospital in April 2017. Mr X said he had to pay for this privately because his care company could cover this support. The full total of the items submitted by Mr X came to £1,754.
44. The Council did not accept all the items submitted by Mr X. It said some of them, for example incontinence pads, were items the NHS should pay for. It also did not agree to pay for the overnight care. The Council accepted around £655 of the items submitted by Mr X which reduced the amount he had to pay weekly by £3.53. The Council sent Mr X a revised invoice for £1,563. The Council advised Mr X to contact credit control if he could not afford to pay the invoice in one sum.
45. Mr X complained to the Council again in September 2018. He said the financial assessment was incorrect and he could not afford to pay the outstanding amount. Mr X also complained about the care he had received since 2013.
46. The Council responded later in September 2018. It asked for more information about why Mr X felt his care package was not adequate. It also asked for the name of the company which provided him with additional care services so it could look further into the matter. The letter explained it would only look at matters which occurred during the last 12 months and explained the reasons for this.
47. Mr X died in October 2018. Ms S informed the Council of this. She was unhappy with the care Mr X received and felt he should not have to pay the outstanding invoice of £1,565. She came to the Ombudsman.

My findings

Mr X’s financial assessments

48. This is what we would expect to see when the Council assessed Mr X’s finances. It should:
• take the benefits listed in Annex C of the statutory guidance into account when calculating his finances and disregard any others;
• only take into account any savings Mr X had over £14,250;
• reduce his contribution by all permitted DRE costs in line with the law and its own guidance; and
• ensure it left Mr X with the guaranteed minimum income.
49. I have checked the Council’s assessment of Mr X. It:
• took the correct benefits, as listed in Annex C of the statutory guidance into account;
• disregarded all his savings because these were below the minimum threshold. It also disregarded the back payment made by the DWP;
• considered the DRE costs Mr X said he incurred and acted in line with the law and its own guidance when determining which ones to accept; and
• left him with the guaranteed minimum income.
50. In relation to the invoice for overnight care, Mr X said he required this care, but the hospital inadequately assessed his mobility prior to discharging him in April 2017. However, I am not investigating the actions of the hospital; therefore, I will not look at whether it acted with fault.
51. The Council assessed Mr X before he was discharged from hospital and determined he had eligible needs in relation to personal care, medication management and preparing meals. The support plan specified Mr X should receive care during the day to meet these care needs. It did not specify Mr X needed care at night. Therefore, the Council was under no duty to provide or pay for this care. The Council acted in line with national guidance and its own charging policy. There was no fault in the Council’s actions.

Mr X’s care plan

52. Mr X and Ms S believed Mr X required a greater package of care. However, Mr X’s needs assessment and care plan detailed his medical conditions, their effect on him, his eligible needs and how those needs would be met. It linked back to the outcomes that he wished to achieve in day-to-day life as identified in the assessment process. The package was increased when Mr X was discharged from hospital as he had increased care needs. Although Mr X wanted more care, there was no fault in the process followed by the Council to determine the care it would provide to meet his eligible needs.

Provision of care March to September 2017

53. I have looked at Mr X’s daily care records for the period March to August 2017. These show he received the care specified in his care plan. Other than a complaint about the care provider changing his carers, there is no record Mr X made any other complaints to the care provider from March 2017. The care provider had no obligation to provide Mr X with the night care he wanted when he left hospital. There was no fault in the care provider’s actions.

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Final decision

54. There was no fault in the Council’s actions. Therefore, I have completed my investigation.

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Parts of the complaint that I did not investigate

55. I have not exercised my discretion to look at events Mr X complained about from 2013 to March 2017. This is because I can see no good reason why Mr X could not have complained to us earlier.

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Investigator's decision on behalf of the Ombudsman