Summary: The Council was at fault for a delay in reviewing Miss C’s care and support plan, which meant there was a delay in referring her for support to bring her transport costs down. However, this delay did not cause her an injustice, because the Council waived her contributions during that period. The Ombudsman cannot question the Council’s decision to charge a contribution because it is entitled to do so, and it has considered Miss C’s income and expenditure, and the law, in reaching a decision.

The complaint

1. The complainant, whom I refer to as Mr B, complains on behalf of his daughter, whom I refer to as Miss C. Miss C is an adult with care needs.
2. Mr B complains that the Council has told Miss C that she must now contribute towards her care costs. He says she cannot afford this.

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The Ombudsman’s role and powers

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. 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

5. I spoke to Mr B about his complaint, and considered information from Mr B and the Council.
6. I wrote to Mr B and the Council with my draft decision and considered their comments.

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What I found

What should have happened?

Care and support statutory guidance

7. This guidance tells councils how to provide services in line with the Care Act 2014. This includes guidance on when and how to charge people for their care.
8. Councils are entitled to charge people what they can afford towards the cost of their care. However, the guidance says councils must disregard certain benefits people receive when deciding how much they can afford to contribute. This includes the mobility components of the disability allowance (DLA) and the personal independence payment (PIP).
9. However, councils must take other benefits into account, such as employment and support allowance, attendance allowance, the DLA care component, and the PIP daily living component.
10. Councils must ensure a person’s income is not reduced below a certain level, so they can afford their living expenses. When this person is not living in a care home, this is referred to as the minimum income guarantee. This is only a minimum and councils have the discretion to set a higher level if they wish.
11. Councils should ensure people can pay for necessary disability-related expenditure (DRE) to meet any needs which are not being met by the council. DRE can include transport costs necessitated by illness or disability, including costs of transport to day centres (over and above the mobility component of DLA or PIP, and if there is no cheaper transport available).
12. Councils should review care and support plans at least every 12 months, or if a person’s circumstances have changed in a way that may affect the usefulness, suitability or content of the plan.

The Care and Support (Charging and Assessment of Resources) Regulations 2014

13. Regulation 7 says a single adult who does not live in a care home, and who is aged over 25 but less than pensionable age, will be entitled to a minimum income guarantee of £90.50 per week.
14. If that person receives employment support allowance and qualifies for the enhanced disability premium, the minimum income guarantee increases to £149.80.

Government circular, January 2019: ‘Social care – charging for care and support’

15. This document says that – for the financial year 2019/20 – the minimum income guarantee for a person described in paragraph 14 of this decision statement will be £151.45.

What happened?

Miss C’s care and support plan

16. The Council completed Miss C’s care and support plan in May 2018. It said she attends day service once a week, works at a nursery and goes dog-walking. These actions help her to achieve her goal of accessing and engaging in work, training, education or volunteering.
17. The plan also said Miss C’s independence should be promoted by encouraging and supporting her to use a bus instead of a taxi when travelling to and from activities.
18. At that point Miss C did not contribute towards the cost of her care. The plan said the Council would review Miss C’s support needs in May 2019.

The Council’s policy review

19. In October 2018 the Council’s policy committee considered whether to change its approach to assessing people’s contributions towards their care.
20. The Council had been disregarding the higher rate of certain benefits people received when deciding their contributions. These benefits were the attendance allowance, the DLA care component, and the PIP daily living component.
21. The Council had also set every person’s minimum income guarantee at £189 per week.
22. The Council said it should not have been disregarding the higher rates of people’s benefits. It also noted that the government suggested a varying minimum income guarantee rate depending on the age of the service user. It said that, for people aged 25 to pensionable age, the minimum income guarantee would reduce to £151.45 per week.
23. The Council proposed that its committee agree to change the Council’s policy so it was in line with government guidance. It had conducted a consultation, which had received a mixture of responses, many of which were negative. However, the Council said it had a significant social care budget deficit. It said changing its policy would save £3.8 million per year, and this would enable it to maintain services to vulnerable adults.
24. The committee agreed the changes.

Changes to Miss C’s contribution

25. At the time of the Council’s policy review Miss C was receiving both the mobility and care components of DLA. She also received employment and support allowance.
26. Before the policy review, the Council was disregarding part of her DLA care component and all of her mobility component. After the review the Council stopped disregarding any part of her care component.
27. The Council also started applying its changes to the minimum income guarantee. However, it agreed to phase the reduction of the guarantee until November 2019, to minimise the impact to service users.
28. The Council re-assessed Miss B’s finances in February to decide her contribution from April 2019 onwards. However, in March the Council told Mr B that it had completed an ‘affordability assessment’ and had decided Miss C did not have enough disposable income to cover her assessed contribution. It said it intended to waive the contribution.
29. From April (when Miss C was due to start paying her contribution) the Council began applying temporary waivers so she did not need to make any payments.
30. Mr B made a complaint in May, saying that – if she had to start contributing towards the cost of her care – Miss C would no longer be able to get taxis to and from her day centre and her job. The Council responded in June, saying Miss C received the DLA mobility component, and this could be spent on transport because it was disregarded from the Council’s financial assessment.
31. However, Mr B said Miss C’s weekly taxi expenditure exceeded her DLA by around £20, so she would still not be able to afford to engage with her regular activities in future. He said Miss C has been unable to get the bus on her own and has needed to take taxis.
32. The Council continued to apply short-term extensions to Miss C’s waiver, meaning she still did not need to pay her contribution.

The Council’s review of Miss C’s care and support plan

33. The Council reviewed Miss C’s plan in September 2019. It did not change her overall goals, but it noted that she now struggled financially to be as independent as she wanted to be.
34. The plan says the Council will refer Miss C to a ‘promoting independence worker’, who will support her with travel training.
35. The Council says it hopes this training will help increase Miss Cs independence on public transport, and therefore bring down the costs of her activities. It will review her support plan again in December 2019 to see if this goal has been achieved.

The Council’s new financial assessment

36. The Council completed a new assessment of Miss C’s financial circumstances in October. It agreed to increase Miss C’s DRE to take her expenditure into account.
37. The Council confirmed that Miss C would have to pay a contribution of £68.87 per week from 4 November (a reduction from its previous assessment). The waivers ended on 3 November.

My findings

38. The cause of Miss B’s increased contributions was the Council’s decision to change its policy in November 2018.
39. The Council’s previous approach was not compliant with the statutory guidance, because it was failing to take benefits into account which the guidance specifically says should be – in Miss C’s case this was the DLA care component. The Council was not at fault for changing its approach to comply with the guidance.
40. The other change the Council made was to its minimum income guarantee.
41. Councils have the discretion to raise their income guarantee above the minimum if they choose, and this was what the Council had been doing. However, in November it decided it could make savings by reducing this to the statutory minimum. It said this would be of overall benefit to its adult social care provision.
42. This was the Council’s decision to make and, as the reduction did not take the income guarantee below the statutory minimum, it was not fault by the Council.
43. The issue which affects Miss C is that, although the Council is correctly applying the law and taking account of her income, her expenditure exceeds her income because she gets taxis to and from various activities.
44. The Council acknowledged that, based on her expenditure, Miss C could not afford her contribution. It applied temporary waivers between April and November 2019. This was an effective way of ensuring she could afford to do the things set out in her care and support plan; however, it was not a permanent solution.
45. In September 2019 the Council reviewed Miss C’s plan and decided an independence worker would try and help her with ‘travel training’, in an attempt to bring down the costs of getting to and from the activities she enjoys.
46. I cannot predict whether the Council’s travel training will be successful in bringing Miss C’s transport costs down. However, it will review her care and support plan again in December. It will be for the Council to decide then if the training was successful and if, therefore, Miss C can afford to attend her activities.
47. Mr B feels that Miss C still cannot afford her contribution, despite the Council’s recent decision to reduce it. However, as the Council has correctly taken her income into account (and has considered her expenditure in arriving at a decision about her DRE), I cannot question its decision to charge her a contribution towards her care (which it is entitled to do).
48. The Council should have reviewed Ms B’s care and support plan in May 2019 (as the statutory guidance allows 12 months between reviews), so its review was four months late. This meant the decision to refer Miss C to an independence worker was also delayed. This was fault by the Council.
49. However, this delay did not cause Miss C an injustice, as during the four-month delay the Council waived all of her contributions, which meant she could still afford to get to and from activities in taxis. As a result, it is not necessary for the Council to take further action.

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Final decision

50. The Council was at fault for a delay in reviewing Miss C’s care and support plan, which meant there was a delay in referring her for support to bring her transport costs down. However, this delay did not cause her an injustice, because the Council waived her contributions during that period. I cannot question the Council’s decision to charge a contribution because it is entitled to do so, and it has considered Miss C’s income and expenditure, and the law, in reaching a decision.

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Investigator's decision on behalf of the Ombudsman