The Ombudsman's final decision:
Summary: Mrs X complained the Council’s new policy on making contributions to the costs of home care is unfair and has caused her daughter financial hardship. There was no fault in the Council’s actions.
- Mrs X complained the Council’s new policy on making contributions to the costs of home care is unfair. In particular, she complained the Council was wrong to allow pensioners a greater weekly income than people under the pension age.
- Mrs X also complained the Council’s decision to approve the new policy was flawed.
- Mrs X says the policy changes have caused her daughter financial hardship.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I spoke to Mrs X and considered her view of her complaint.
- I made enquiries of the Council and considered the information it provided. This included Mrs X’s daughter’s financial assessments, the report to the Council’s Policy Committee on how it calculated individual contributions to care and the complaints correspondence.
- I wrote to Mrs X and the Council with my draft decision and considered their comments before I made my final decision.
What I found
Legal background and Council policy
- The Care Act 2014 is the over arching legislation which sets out what councils can charge people who have an assessed need for care.
- The Care and Support Statutory Guidance sets out in detail how councils must apply the requirements of the Care Act.
- Councils have discretion to choose whether or not to charge for non-residential services. Where a council decides to charge it must do so in line with the Care and Support (Charging and Assessment of Resources) Regulations and have regard to the Care and Support Statutory Guidance.
- Where the council has decided to charge, it must carry out a financial assessment of what a person can afford to pay.
- Councils can take most benefits into account including employment and support allowance (ESA), attendance allowance and some components of disability living allowance.
- Councils may exercise discretion to disregard some sources of income even if the law says they are allowed to take them into account when calculating a person’s contribution to their care.
- 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 (MIG). The amounts are set out in the Care and Support (Charging and Assessment of Resources) Regulations. However, this is only a minimum and councils have discretion to set a higher level if they wish.
- During the time period of this complaint the Council’s weekly MIGs were higher than the national guidance figures and were as follows:
- people aged 18 – 24 years old = £132.45;
- people from 25 years to under pensionable age = £151.45; and
- pensionable age and over = £189.
The Council’s Constitution
- All councils have a constitution which sets out how they are governed and how decisions are made.
- This Council’s Constitution states the Policy Committee has responsibility for policy development and approval on all matters other than those that must be decided by a meeting of the full Council. This means the Policy Committee has the authority to approve changes to the Council’s policy relating to how it calculates the contribution a person must make to the cost of their care.
- Prior to November 2018, the Council’s policy on calculating the contribution to a person’s care included the following:
- if a person received disability living allowance (around £85 a week), it disregarded £28.30 of this as income; and
- all people, regardless of their age, had a MIG of £189.
- include the full amount of a person’s disability living allowance as income; and
- reduce the MIG for people under pension age to £170.23 from April 2019 with a further reduction to £151.45 from November 2019.
- from April 2019, a partial decrease in the MIG would be introduced so that people between the ages of 18 and pensionable age would have a MIG of £170.23; and
- from November 2019, people between 18 and pensionable age would have a MIG of £151.45.
- Mrs X’s daughter, Ms D, is in her 50s and is disabled. She receives care at home.
- Ms D receives ESA and disability living allowance.
- Prior to the introduction of the new policy changes, the Council’s financial assessment of Ms D showed it classed all of her ESA and £28.30 of her disability living allowance as income. It allowed her a MIG of £189. As a result, Ms D contributed £39.75 a week towards the costs of her care.
- Following the implementation of the new proposals, the Council’s financial assessment of Ms D showed her contributions increased to £91.72 a week. This was because the Council classed the full amount of her disability living allowance as income and decreased her MIG to £170.23.
- Mrs X was unhappy with these changes and in March 2019 she complained to the Council. She said it was unfair that pensioners were allowed a MIG of £189 when the MIG for younger people was lower than this. Mrs X said this was particularly unfair for Ms D as she would not live to pensionable age.
- The Council responded at the end of March 2019. It said that it would not consider her complaint under its corporate complaints policy because it had no power to overturn the Policy Committee’s decision to introduce the changes. The Council explained the consultation process it had carried out. It recommended Ms D complete an income and expenditure form so the Council could carry out another review of her finances to ensure her contribution was correct.
- Mrs X remained unhappy and complained to the Ombudsman.
- The Ombudsman is not an appeal body. We cannot review the merits of a council policy nor propose a change or amendment to it when it complies with national guidance and any policy changes were made without fault.
- The Council followed the correct procedures when it made changes to its policy. The consultation was not a binding referendum and the Council had no duty to act in line with the majority who opposed the changes. The relevant Council committee submitted a report which contained appropriate information to the Policy Committee for its consideration and subsequent approval. This was in line with the Council’s Constitution. And the proposals are in line with the national Regulations. There was no fault in the Council’s actions.
- The result of these changes is that Ms D must now contribute more towards the cost of her care. However, there is no fault in the way the Council has assessed her finances and calculated her contribution.
- Mrs X says it is unfair that people under pensionable age have a lower MIG than people who receive a pension. However, this is what the law says and the Ombudsman has no power to intervene. Therefore, I will not investigation this matter further.
- There was no fault in the Council’s actions. Therefore, I have completed my investigation.
Investigator's decision on behalf of the Ombudsman