Summary: Mrs X complains that the Council included a loan in her disability related expenditure and this was not right. It also increased the cost of her care and sent invoices for different amounts. She says this caused her problems sleeping, she felt sick with worry and she cancelled her care. The Ombudsman finds the Council was at fault in not assessing Mrs X’s DRE for 11 years. The Council will apologise and offer a fresh needs assessment.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains that the Council:
• Included a loan in her DRE assessment but this was not right.
• Did not explain why the cost of her care increased and kept sending invoices for different amounts.
• Was difficult to contact when she wanted to discuss her concerns
2. Mrs X says this caused her problems sleeping and she felt sick with worry about the non-existent loan. She would like an apology from the Council to say she never had a loan.

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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). I have exercised discretion to consider Mrs X’s complaint back to 2008.
4. 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)
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 considered information from the Complainant and from the Council.
7. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

8. Local authorities have a duty to arrange care and support for those with eligible needs and the discretion to charge. Where a local authority decides to charge, it must follow the Care and Support (Charging and Assessment of Resources) regulations and have regard to the guidance.
9. The guidance says that when it decides to charge, the authority must carry out a financial assessment to determine what the person can afford to pay. It must give a record of this to the person and explain about the assessment and any changes to the charge. It must do this regularly, probably annually, but it can vary according to individual circumstances. An assessment must be completed when the person’s circumstances change or if they ask for an assessment.
10. The guidance also says that when the authority includes disability-related benefits in the financial assessment, it should assess the person’s disability related expenditure (DRE). It should allow the person to keep enough benefit to pay for “necessary disability-related expenditure to meet any needs which are not being met by the local authority”.

What happened

11. Mrs X received a package of care. In 2008, the Council asked her about her disability related expenditure (DRE) so it could allow this against her contribution to her care costs.
12. In addition to items such as cleaning and special footwear, the Council’s record of her DRE includes £8.50 for “payment of debt to KCC”. It also includes £2.00 “to help with above debt”.
13. In June 2018, Mrs X asked the Council for a reassessment because it had used the wrong council tax, rent and pension and she believed she was being overcharged. The Council visited on 9 August and Mrs X told the worker she had never had a loan from the Council. She refused to sign the financial assessment form so the Council did not complete the review. Mrs X says she refused because the form was blank. The Council says assessors would not ask someone to sign a blank form.
14. In April 2019, Mrs X’s contribution increased significantly. Mrs X complained and said she no longer wanted care from the Council as she could not afford to pay. The Council offered to visit and explain but Mrs X declined. The Council suspended her package of care.
15. In the eleven years since Mrs X’s previous DRE assessment, her expenditure changed. When the Council reassessed her DRE, the allowance reduced. Consequently, her contribution increased and so she received invoices for different amounts. Council records say the Council tried to explain the changes to Mrs X but she was so unhappy with the changes, she did not want to discuss it. Mrs X says she became upset because of the way the officers spoke to her. The Council says it was not aware she was upset and apologises if this was the case.
16. Council records evidence several telephone contacts with Mrs X in February, April and May 2019. It operates a single point of contact system so all calls go to the same place. Without specific times and dates, the Council has been unable to identify the reason for Mrs X’s problems with contacting the Council. It has apologised to Mrs X for the difficulties she experienced.

Was there fault which caused injustice?

17. The Council cannot find any record of a loan or debt but cannot say one did not exist back in 2008. Mrs X appears to have signed the form so it seems she agreed with it in 2008. If, as Mrs X says, these debt related items were incorrect and the Council were to remove them from her DRE calculation retrospectively, it would increase her contribution to her care by £10.50 per week from 2008. The Council is satisfied these were correct at the time and it removed them when it became aware the debt did not exist.
18. DRE is part of the financial assessment process and should be reviewed every year at the same time as the rest of the financial assessment. The Council acknowledges it should have reviewed the DRE annually. It was at fault here and Mrs X may have been better able to understand any changes had this happened regularly. This caused her significant and avoidable anxiety and confusion. Had it reviewed the DRE sooner, it is likely Mrs X would have had to pay a higher contribution sooner. However, there may also be expenditure which was not allowed for during the eleven years. On the balance of probability, I found Mrs X had probably benefitted from a lower contribution because of the delay.
19. I am satisfied that Mrs X had difficulty contacting the Council and that it did not deal fully with her complaint.

Agreed action

20. To remedy the injustice identified above, the Council has agreed to:
• Apologise to Mrs X in writing.
• Offer Mrs X a fresh needs assessment.
• Ensure all DRE is reviewed annually. It says it currently has a backlog and has an action plan in place to deal with this.
21. The Council should complete these actions within two months of the final decision and provide evidence of this to the Ombudsman. Suitable evidence would include:
1. A copy of the apology letter including the offer of a needs assessment.
2. An action plan detailing specific actions and progress on the backlog.

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Final decision

22. I have completed my investigation and uphold Mrs X’s complaints that the Council:
• Included a loan in her DRE assessment but this was not right.
• Did not explain why the cost of her care increased and kept sending invoices for different amounts.
• Was difficult to contact when she wanted to discuss her concerns.

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Investigator's decision on behalf of the Ombudsman