Summary: Ms X complained the Council charged her for additional care following an accident and about the way it assessed how much she should contribute to the cost of care and support. The Council was at fault for charging for the additional care that was needed after an accident for which it accepted liability. It should waive those charges. There was no fault in the way it calculated Ms X’s contribution to her care.

The complaint

1. Ms X complained the Council:
• inappropriately charged her for additional care that was needed following an accident on a ramp for which the Council accepted liability;
• did not take into account her disability related expenditure when it completed the financial assessment;
• did not review how well the replacement ramp was working; and
• has not reviewed her needs.

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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. 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)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. 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

6. I spoke to Ms X and considered the information she provided.
7. I considered the information the Council provided in response to my enquiries.
8. I considered relevant law and guidance, as set out below, and our guidance on remedies.
9. Ms X and the Council had an opportunity to comment on my draft decision and I considered their comments before making my final decision.

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What I found

10. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. Where a person has eligible needs the council should prepare a care and support plan. This sets out how the person’s needs will be met.

Charging for social care services

11. 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)
12. Councils must assess a person’s finances to decide what contribution they should make to the cost of their care. The council should take into account their capital and income. If they incur expense directly related to their disability the council should take this into account. The charges should not reduce the person’s income below Income Support plus 25%. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)

What happened

13. Ms X had an accident on a ramp near her home in November 2018. Before the accident she had two hours per week of care. She did not pay towards the cost of that care following a financial assessment in 2012.
14. The Council assessed Ms X’s needs when she returned home from hospital after the accident. It decided she needed two calls each day to help with personal care. It arranged the care through an agency. Mrs X says the Council did not tell her she would have to pay for the additional care.
15. The Council asked Ms X to complete fresh financial assessment forms because it had not carried out a full financial assessment for several years. Ms X said she asked the Council for help with completing the form but the Council refused. She said an officer told her to sign and return the form and the Council would contact her if it needed further information. She sent the incomplete form to the Council.
16. The Council says it has no record of Ms X asking for help to complete the form. It says it has helped Ms X complete forms in the past and would have done so again if it had been aware of her request.
17. The Council completed the financial assessment using information about Ms X’s income from benefits the Department for Work and Pensions (DWP). It wrote to her at the end of November 2018 to say it had calculated she should contribute up to £97.30 per week towards her care. The cost of her care at that point was £180 per week.
18. Ms X cancelled the additional care when the Council sent her an invoice for her contribution to the additional care provided in November 2018. The last day she received the additional care was 20 December 2018.
19. Also on 20 December, the Council carried out a further needs assessment. It decided Ms X needed the two hours per week support that she had before the accident. The personal budget for this was £33.50 per week.
20. At the end of January 2019 the Council wrote to Ms X to remind her she had not sent it any documents about her finances and asked her to send these within 28 days.
21. The Council sent an invoice for the additional care to the end of December. When Ms X questioned this, it amended its records and issued a credit note for £152.90 overcharged. It explained the financial assessment was based on information from DWP. It asked her to send it evidence of her disability related expenses.
22. In mid February 2019, Ms X told the Council she was taking legal action about the accident. She also asked the Citizens Advice Bureau (CAB) for help providing the financial documents. The CAB wrote to the Council in early March 2019. The Council did not reply to this letter.
23. Although the Council had not installed the ramp in question, it’s insurer accepted liability for the accident in February 2019. It offered Ms X compensation, which she refused. The insurer said it could not consider what additional support social services decided she needed nor the cost of those services as this was a matter for the Council. I understand the claim is still being considered by the insurer.
24. Ms X has not paid any of the invoices the Council sent from December 2018 onwards.

Additional ramp

25. Ms X said the Council replaced the ramp on which she had the accident but did not check how well the new ramp was working. She said the ramp was not safe for her.
26. The Council has explained that this was an additional ramp installed because Ms X could not manage her front step and not a replacement of the ramp she had the accident on. It’s records show officers inspected the additional ramp and considered Ms X’s walking style when using it. It suggested additional rails to assist Ms X to move safely from the ramp to the pavement and from the ramp to her front door. It says these were installed in March 2019.
27. The Council says Ms X raised concerns about the surface of the ramp by email in July 2019. It contacted the supplier but it was not possible to replace the ramp floor because this would put other people using the ramp at risk of an accident. The ramp provides a shared access to the building and complies with building regulations. An officer explained the position to Ms X in a telephone conversation on 5 September 2019.

Review of needs assessments

28. Ms X says the Council usually reviews her needs each January but did not do so in January 2019. She thinks this was because she made a claim about the accident.

My findings

29. Ms X needed 2 hours per week adult social care before her accident. She did not have to pay for that care. After the accident she needed two calls each day to help with personal care, in addition to the two hours each week to help with housework.
30. At the time the Council agreed to provide the additional care Ms X had not started legal action and it had not accepted liability for the accident. It was also not aware that Ms X’s income had increased since it last carried out a financial assessment because she had not told it about this. It did tell her it would need to carry out a fresh financial assessment but it is not clear from its records that it told her she may need to contribute towards the cost of the additional care. It would have been better if the Council had been clear about this but I do not think in these particular circumstances this amounts to administrative fault.
31. The Council was entitled to ask for a contribution to the additional care when this was needed in November. However, it subsequently accepted liability for the accident. It was fault for the Council to continue to ask Ms X for a contribution to the costs of the additional care once it had accepted responsibility. This fault caused an injustice to Ms X because it caused her unnecessary worry. She said she cancelled the additional care early because she was worried about the cost. The Council should waive the costs for the additional care.
32. The Council carried out a fresh financial assessment in November 2018. The Council is expected to carry out a financial assessment each year.
33. The Council has no record of Ms X’s request for help with the form. It says it could have helped her with the form. On balance, I accept Ms X’s account of what happened. She said she was told to send the signed form back and the Council would let her know if it needed additional information. This is what she did. When the Council later asked her for financial documents she sought help from the CAB. The officer gave Ms X the wrong advice and this was fault. This fault has contributed to a delay in assessing what Ms X should pay towards her care.
34. The Council used information about Ms X’s income from DWP. It did not have any information about Ms X’s disability related expenses because the relevant section of the form was not completed. There is no fault in the way the Council carried out the financial assessment.
35. When Ms X cancelled the additional care there was a delay in telling the finance team. This meant Ms X was sent an invoice for additional care to the end of December when, in fact, it ended on 20 December. However, I do not consider this delay was sufficient to make a finding of fault. In any case, the Council corrected its records and issued a credit note when Ms X pointed this out to it.
36. The CAB contacted the Council with financial documents and information about the disability related expenditure. The Council did not respond to this letter. That was fault. That fault caused a delay in carrying out a re-assessment. The Council has now asked for evidence of the disability related expenses and will re-assess Ms X’s contribution when it receives this. It will back-date the assessed contribution to November 2018 when it carried out the original financial assessment.
37. The Council is not at fault for deciding Ms X should contribute to the cost of the two hours per week care that it has arranged throughout this period. However, it will need to recalculate her contribution when it has considered her disability related expenses.

Additional ramp

38. The Council asked the supplier about a different surface for the ramp. But because it is a shared access it cannot be changed as this would put other users at risk. The Council explained the position to Ms X. It is not at fault.

Review of needs assessment

39. Councils will usually review needs assessments annually. Ms X said it usually reviews her needs in January each year. However, the Council carried out two reviews of her needs after the accident so does not need to review them again until a year after the last review, which was in December 2018. If Ms X thinks her needs have changed she can ask for a review earlier than that.

Agreed action

40. The Council will, within one month of the date of the final decision,
• apologise to Ms X for the way the financial assessment was handled, specifically for giving her the wrong advice about the financial assessment forms, and for not responding to the CAB contact;
• waive an amount of £255.20, representing the contribution for the additional care, and write to Ms X to confirm it has done so;
• pay her £250 for the inconvenience and uncertainty caused by the delay in finalising what Ms X should pay towards her care, and the time and trouble of having to pursue the matter with the Council and with us. It may offset this amount against the outstanding invoices relating to her adult social care.
41. Within one month of Ms X sending it evidence of her disability related expenses, the Council will:
• reassess Ms X’s contribution to the cost of care; and
• if the reassessment amends the assessed contribution, this will be back-dated to November 2018. In those circumstances, the Council will cancel the current outstanding invoices and send a revised invoice for the period from November 2018.

The Council is not able to amend the assessed contribution without evidence of the disability related expenditure.

42. The Council will, within three months of the date of the final decision, remind relevant staff of its processes in relation to customer service and any protocols for providing assistance to service users and vulnerable people to complete a financial assessment in their own homes.

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Final decision

43. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence.

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Investigator's decision on behalf of the Ombudsman