Summary: The Council failed to regularly reassess Miss B’s finances to decide what contribution she should make to the cost of her care. It also failed to do enough to ensure Miss B knew how to report changes to her financial situation. This resulted in Miss B receiving an invoice for £2513.18 for backdated charges. The Council has agreed to apologise and make a payment to Miss B and to write off the backdated charges.

The complaint

1. Mr X is complaining on behalf of Miss B. He complains that the Council is unfairly asking Miss B to pay backdated charges for her care.

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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 Mr X;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and Mr X the opportunity to comment on my draft decision.

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What I found

The law, government guidance and the Council’s policy

5. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
6. Councils must assess a person's finances to decide what contribution he or she should make to care costs. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person's income below a certain amount. The Council can take a person's capital, savings and income into account subject to certain conditions. (Care Act 2014, Care and Support Statutory Guidance)
7. Councils must regularly reassess a person's ability to meet the cost of any charges and to take account of any changes to their resources. The Council should also reassess the person's finances if there is a change in circumstances or the person requests this. (Care and Support Statutory Guidance, paragraph 8.17)
8. Where arrears have accrued, the Guidance says before pursuing any course of action the local authority should consider whether it is appropriate to recover the debt - although it has the power to do so, and in many cases will wish to do, it does not have to or indeed it may wish to only recover part of the debt. Such circumstances may include:
• where the amount of the debt is small and the costs of recovery would be disproportionate
• the person or their representative could not reasonably have been aware that the asset in question needed to be included in the financial assessment. (Care and Support Statutory Guidance, annex D)
9. Between April 2015 and April 19, the Council’s financial assessment policy said:

“We will periodically review your financial assessment – usually annually – either when your care and support assessment is completed or when pensions, benefits and allowances change in April.”

“If your financial assessment review changes what you pay, we will confirm the changes in writing.”

10. The Council’s current financial assessment policy says:

“We will review your financial assessment annually to take account of changes to capital limits, allowances, pensions and state benefits in April. We write to you about the financial assessment review and confirm any changes to your Assessed Maximum Weekly Contribution.”

Key events

11. Miss B is registered blind and has received a package of care for several years. In January 2015, the Council carried out a financial assessment. It then wrote to Miss B in February 2015 to tell her that she did not have to contribute to the cost of her care.
12. In July 2017, Miss B’s benefits increased. She notified the Council and was informed that the increase would not affect her housing benefit.
13. In April 2018, the Council carried out a review of Miss B’s financial situation. It determined that Miss B should have been contributing £66.69 a week towards the cost of her care since her benefits increased in July 2017. It told Miss B that she would have to pay backdated charges of £2513.18.
14. Miss B contacted the Council and explained that she had notified the Housing Benefit team when her benefits had increased and had been told that she didn’t need to let anyone else know. She said that she could not afford to pay towards her care or to pay the backdated charges and she cancelled her care package.
15. The Council told Miss B that she should have reported the increase in benefits to its Financial Assessment and Benefits team. It said that it had told her this when it wrote to her in February 2015.
16. Miss B contacted her Member of Parliament (MP) who made a complaint to the Council on her behalf. He told the Council that Miss B disputed having received a letter in February 2015 about how to report changes to her benefits. He said that Miss B considered the Council should have done more to make sure she knew that she had to notify the Financial Assessment and Benefits team, as well as the Housing Benefit team. Miss B’s MP asked the Council to cancel the backdated charges.
17. In the Council’s response it said that Miss B was still liable for the charges. It said that she was given information about her responsibility to inform the Council of changes to her financial situation, and she had been receiving support to deal with correspondence.
18. Miss B escalated her complaint with the support of an advocate, Mr X. He said that Miss B had no memory of the letter from February 2015, and at that time she relied on carers to read letters to her. Mr X said that he considered the Council had a duty to explain more clearly and more frequently to a blind person and that it should consider cancelling the backdated charges.
19. In the Council’s response, it said that it was a reasonable assumption for Miss B to think that departments within the Council would communicate information to each other, but that this was not always the case. It agreed to write off 50% of the backdated invoice, leaving a total balance of £1256.59 to pay.

Analysis

20. Councils must regularly carry out financial reassessments. The Council’s policy during the period in question says that it will usually carry out reviews annually and will confirm any changes in writing.
21. The Council carried out a review of Miss B’s financial circumstances in April 2017, over two years after it carried out the financial assessment in January 2015. This delay was fault.
22. When it carried out this review in April 2017, it did not contact Miss B and based it on information provided by the Department for Works and Pensions and information it had obtained from Miss B in January 2015. It did not write to Miss B to tell her the outcome of the review.
23. The Council says that all outcome letters state that it is the service user’s responsibility to tell the Financial Assessment and Benefits team of any changes to their financial circumstances. But the Council did not send Miss B any outcome letters between February 2015 and April 2018. I consider the Council failed to do enough to ensure Miss B knew that she needed to report any changes to her financial circumstances to the Financial Assessment and Benefits team.
24. If there had been no fault here, and the Council had regularly carried out financial reviews and written to Miss B with the outcome of those reviews, I consider Miss B would have known that she needed to contact the Financial Assessment and Benefits team. If Miss B had discovered in July 2017 that she had to contribute to the cost of her care, I consider it likely that she would have cancelled her care package, as she did in 2018, and she would not have incurred any charges. I therefore consider the Council should write off the full amount outstanding.
25. I note that the Council has changed its policy and it now states that it will carry out reviews annually and will write to the service user about the review. I therefore do not consider it necessary to make any recommendations for service improvements.

Agreed action

26. Within four weeks, the Council will:
• apologise to Miss B for the failings identified in this case;
• make a payment of £100 to Miss B for the distress caused by those failings; and
• write off the full amount outstanding and confirm in writing to Miss B that it has done so.

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Final decision

27. I have completed my investigation and uphold the complaint. There was fault by the Council which caused injustice to Miss B. The action the Council has agreed to take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman