Summary: There is no evidence of fault in the way the Council completed a financial assessment of Mrs Y. It properly considered requests for items to be included as disability related expenditure. As there is no evidence of fault in the process, I cannot comment on the merits of the decision reached. The Council is not at fault for levying a charge for Mrs Y’s stay in a residential care home

The complaint

1. Mrs X complains about the outcome of a financial assessment the Council completed of her mother, Mrs Y. She says the Council has been unfair in its consideration of Mrs Y’s disability related expenditure.
2. Mrs X complains the Council charged her mother for a temporary stay in a residential care home.
3. She complains about the way Mrs Y’s granddaughter was treated by a social worker.
4. She also complains about the way the Council handled correspondence.

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The Ombudsman’s role and powers

5. 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)
6. 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

7. I have:

• considered the complaint and discussed it with Mrs X;
• considered the correspondence between Mrs X and the Council, including the Council’s response to the complaint;
• made enquiries of the Council, and considered the responses;
• taken account of relevant legislation;
• offered Mrs X and the Council an opportunity to comment a draft of this document.

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What I found

Relevant legislation

8. Councils can make charges for care and support services they provide or arrange. (Care Act 2014, section 14). Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. After paying the required contribution, a person’s income should not reduce below a minimum income level, called the 'Minimum Income Guarantee' (MIG).
9. If a person incurs expenses directly related to any disability he or she has, the Council should take that into account when assessing his or her finances. This is referred to as disability related expenditure.
10. Councils should review personal budgets every 12 months. This could lead to an increase or reduction in the budget, depending on the circumstance.

What happened

11. There is an extensive amount of correspondence between Mrs X and the Council about this complaint. It is neither expedient nor necessary to refer to it all in this document.
12. Mrs Y is elderly. She has dementia and physical health issues.
13. In 2015 Mrs Y and Mrs X both sold their homes to purchase a home large enough for them to live together. Mr & Mrs X had to take on a larger mortgage than they had previously. Mrs Y contributed towards the conversion of the home.
14. At the time Mrs Y was self-caring and required no assistance with personal care.
15. Mrs Y paid Mrs X a monthly rent of £250. Mrs X says this contributes towards utility bills, council tax, other household bills and domestic tasks, such as shopping, laundry, gardening, cleaning, home insurance, Corgi insurance, sky tv, cctv & broadband.
16. In 2018 Mrs Y was admitted to hospital with a urine infection. At the time, Mrs X was away on holiday.
17. The Council received a referral from the hospital about Mrs Y on 6 April 2018. Mrs Y was seen that day be a Care Coordinator. Mrs Y told the officer she did not wish to disturb Mrs X whilst she was on holiday, but she did want Mrs X to be present at an assessment of her needs. Mrs Y was not able to return home without support.
18. Mrs Y was medically fit for discharge on 18 April 2018. She was discharged from hospital to a residential care home on a respite placement until a need’s assessment could be completed. Mrs Y and her granddaughter agreed to the placement. Mrs X says a social worker ‘coerced’ Mrs Y’s granddaughter into signing a financial agreement to say Mrs Y would pay for her care, and that no information about charging was given at the time. Mrs X believes Mrs Y was entitled to six weeks free care. The Council says Mrs Y was not eligible for free care, known as reablement care, because she had long term care needs.
19. The Council completed a needs assessment of Mrs Y 30 April 2018. This concluded she needed four home care visits a day from two carers. Following a physiotherapy assessment, the Council reassessed Mrs Y’s needs on 21 May 2018. Her mobility had improved, and she needed only one carer per visit.
20. The Council were unable to source a care agency to take on Mrs Y’s home care package. Mrs X says their area seems to be “a bit of a black hole when it comes to carers”. Mrs X was concerned Mrs Y was at risk of becoming institutionalised whilst in residential care. The Council offered Mrs X the option of direct payments on 21 May 2018 so they could purchase home care services privately.
21. Mrs X says she accepted this option because she wanted to get Mrs Y home. The Council allocated Mrs Y a weekly personal budget of £280 per week. It provided Mrs X with a list of nineteen different care agencies. Mrs X contacted all the care agencies on the list. Half did not cover her area and the other half could not take on the care package. Mrs X says she understood why the Council was having difficulty sourcing a care agency.
22. Mrs X contacted care agencies not on the Council’s list and found two that covered her area. She contacted both. She chose the agency that would send a small regular group of carers. The cost of the care was greater than the budget allocated by the Council. Mrs X was told a weekly top-up of £45.66 would need to be paid.
23. Mrs Y went home, and the care package commenced on 28 May 2018.
24. Mrs X sent an email to the Council asking why Mrs Y had to pay the top-up when the Council had been unable to source a care provider from its preferred provider list. Mrs X says it was a ‘fight’ to get the Council to accept it should pay the top-up. She sent several emails and telephoned the Council numerous times pursuing the matter. She also complained that Mrs Y had been charged for her respite stay.
25. The Council wrote to Mrs X on 6 July 2018 to confirm it had been unable to “…provide carers from within the Council framework…” and that Mrs X had identified a care agency that was able to take on the care package requiring a top-up. The Council said it would pay the full amount of the top-up fee but would continue to seek a care provider that could meet Mrs Y’s needs within the allocated budget. When a provider was found Mrs Y could then transfer. If Mrs Y wished to remain with her current care provider then she would be liable to pay the top-up. The Council says at Mrs X’s request the ‘booking request’ for Mrs Y to transfer to a council commissioned service stayed in place.
26. On 11 July 2018 the Council wrote to Mrs X to inform her it had found a care agency to take over Mrs Y’s care on 23 July 2018. Mrs Y would receive 15.75 hours per week.
27. The author of the letter explained the cost of the care to be £274.94 but said he could not at that point say what Mrs Y’s contribution would be. A financial assessment would need to be completed.
28. Mrs X asked if the care package was ‘like for like’ if not, she said she would decline the offer and wait until the Council could find one that matched the care Mrs Y was receiving.
29. The Council told Mrs X the times of the visits would be:
30. The visit times offered were:

• 8am
• 12 noon
• 4pm
• 9.30am

31. Mrs X declined the Council’s offer because she believed the times may vary slightly, for example an 8am visit could be 7.30am and this would be too early for Mrs Y, and any variation in times may mean longer gaps between visits. Mrs Y needed four hourly gaps between visits for medication. The times of the visits Mrs Y was receiving were:

• 8am
• 1pm
• 5.30pm
• 9.30pm

32. The Council says it does try to meet a service user’s preference, but it does not offer a bespoke service. It told Mrs X that it would no longer pay the top-up if Mrs Y continued with her current agency. Mrs Y became liable for the top-up from 23 July 2018.
33. Mrs X believes this to be unfair. She says Mrs Y had become familiar with the carers and the Council has not taken account of this.
34. Mrs X asked the Council for a breakdown of the direct payments. She says she has not received this. The Council says it provided Mrs X with a copy of Mrs Y’s support plan on 10 May 2018 and 7 September 2018. The support plan details the personal budget.
35. In response to my enquiries the Council says it is the responsibility of the direct payment recipient to source an agency within the agreed budget. If the care costs are higher, then the budget would have to be topped up by the service user.
36. The Council completed a financial assessment of Mrs Y on 12 June 2018. I have seen a copy of this assessment. The Council recorded a breakdown of Mrs Y’s savings. It also recorded that Mrs Y was left with £145,000 after the sale of her home and that she contributed some of this towards the shared home. Mrs X said Mrs Y contributed £70,000 towards the conversion of the house and the remaining money was disbursed in accordance with her late father’s will.
37. The assessment recorded Mrs Y gifted Mrs X’s daughter £3879.22 in April 2018. Mrs Y had available savings just over £11,000, the Council included the gifted amount in its calculations and recorded Mrs Y’s total savings to be £14, 946.95.
38. Mrs X asked the Council to consider the expenditure listed in paragraph 15 (her monthly payments to Mrs X) as disability related expenditure (DRE) She also asked for an allowance towards continence products and podiatry. The Council said these services could be provided by the NHS. Mrs X says there was a 12 week wait to access the continence service. The Council allowed DRE of £15.19 towards council tax and £2.95 towards home insurance. It excluded all other expenditure.
39. It concluded Mrs Y’s contribution towards her care to be £222.00 per week.
40. The Council refused to include the rent Mrs Y pays to Mrs X because there is no formal rent liability. It says the payments are for household expenditure, not DRE and this is not a formal rent liability. Mrs X offered to obtain and complete a rent book. The Council said this would not alter its decision. It said, “assuming you and [Mr X] are joint owners it seems reasonable to for you to be responsible for maintenance”. It said it had allowed a DRE allowance for council tax when liability was held by Mr & Mrs X. It confirmed Mrs X had submitted utility bills covering a calendar year, but these showed the usage to be less than the average set by the national framework.
41. Mrs X says the Council is treating Mrs Y unfairly because she shares their home. She believes the Council is applying a ‘blanket policy in refusing to consider Mrs Y’s DRE. She says Mrs Y is contributing towards her care plus other costs, but the council only allow partial council tax and partial home insurance when calculating her expenditure. Mrs X says in addition to this Mrs Y pays her rent, consequently Mrs Y’s savings are depleting. Mrs X says after speaking to the Council she realised she was doing more for Mrs Y than she realised so she increased Mrs Y’s rent to £500 per month. Mrs X wrote to the Council to inform it.
42. Mrs X exchanged numerous emails and letters with the Council over several months about the financial assessment, the DRE and how Mrs Y’s transfer from hospital into temporary residential care had been handled, including the way Mrs Y’s granddaughter was treated by a social worker.
43. The Council responded on 24 July 2018. It said the social worker that dealt with Mrs Y’s discharge from hospital was a temporary officer and has since left the Council. It said if Mrs X had complained sooner it could have addressed the complaint directly with the officer. The Council apologised for any distress Mrs Y’s granddaughter may have been caused.
44. The Council says it does not apply a blanket policy. It considers each claim for DRE on its merits, and any claim for DRE above the flat rate is subject to assessment. It said a bespoke DRE assessment had been completed before any decision had been made about DRE. It said this could be reviewed if additional evidence was submitted.
45. Mrs X met with Council officers on 4 September 2018 to discuss her complaint. Mrs X reiterated that after Mrs Y paid her personal financial commitments she did not have enough money to pay a contribution towards her care. The Council maintained its position and said if Mrs X remained dissatisfied with the financial situation she should submit a financial appeal.
46. In October 2018 Mrs X hand delivered a written complaint to the Council. She did not receive an acknowledgement, so she contacted the Council to chase a response. The Council acknowledged its post room had failed to advise the relevant department about receipt of the letter. It apologised to Mrs X for this.
47. The Council reviewed Mrs Y’s financial assessment and wrote to Mrs X on 30 October 2018 to inform her of the outcome. It reiterated is position on most of the DRE. It accepted additional washing was required for Mrs Y and allowed a weekly allowance of £3.76. It referred Mrs X back to its letter of 24 July 2018, in which it apologised any for distress caused to Mrs Y’s granddaughter during Mrs Y’s discharge from hospital.
48. Mrs X submitted a further letter to the Council about the DRE in December 2018 with additional information. The Council reviewed the financial assessment again and responded to Mrs X on 14 December 2018. It said many points Mrs X raised had been dealt with in previous correspondence. It confirmed it would allow £3.76 per week for washing and ironing, £2.05 per week for a powered chair and the cost of a magnetic lock.
49. Mrs X remained dissatisfied and submitted an appeal. The Council responded on 3 January 2019. It said the issue of rent had been addressed previously and reiterated there was no formal rent liability because Mrs Y shares Mr & Mrs X’s home, and that she had made a significant financial contribution towards it. It said the Council used government statistics to benchmark utility costs and Mrs X’s usage was not excessive. In respect of gardening costs, it said it was unclear if Mrs Y had a garden separate to Mr & Mrs X, and if Mrs X was able to evidence this then gardening costs may be considered as DRE. It confirmed allowable weekly DRE to be:

• washing & ironing £3.76
• powered chair £2.05
• sky talk line rental £2.19

50. A total of £8.00 per week. This is below the Council’s flat rate of £16 per week.
51. It also allowed one off payments for the purchase of a magnetic lock costing £1020 and a bucket costing £32.
52. The Council told Mrs X if she dissatisfied she could make a stage two appeal.
53. Mrs X submitted a stage two appeal on 31 January 2019. The Council invited Mr & Mrs X to a financial review panel meeting on 11 March 2019. Mrs X asked that the officer dealing with the financial assessment was not present. The Council agreed to this and the officer appeared before the panel after Mr & Mrs X had left the meeting.
54. Mrs & Mrs X attended the meeting. Other participants included three independent panel members, and four council officers. The minutes of the meeting are detailed and record discussions with Mr & Mrs X and how the panel considered the points they raised. It considered each DRE request individually. The panel also considered the issue of rent paid by Mrs Y to Mrs X. The panel concluded Mrs Y had no formal financial interest in the property despite having made significant contributions towards adaptions. She has no formal tenancy agreement and does not have tenancy rights. The Council did not uphold this aspect of the appeal.
55. The panel did not uphold the requests for home Corgi Home insurance, security costs, including cctv, sky tv, broadband and telephone costs, utility costs, window cleaning, and hairdressing costs.
56. It concluded DRE for gardening, cleaning costs and shopping may be eligible subject to further evidence and further assessment of Mrs Y’s needs.
57. The panel did not uphold DRE for podiatry costs because nail cutting was not required due to a disability and continence products can be obtained through the NHS.
58. The panel also concluded that recorded information about financial and asset information collected by the Council in respect of the sale of Mrs Y’s former home be retained.
59. The panel concluded “In considering the entire matter of deductions applied to the Personal Budget Direct Payment, the panel noted that [Mrs Y’s] rights to a protected weekly income have been upheld”. The panel did consider that some learning arose from the complaint. These related to more user-friendly information about DRE, considerations to be given to the request for evidence of expenditure, and the handling of hand delivered correspondence.
60. Mrs X did not receive a copy of the minutes. Mrs X received a copy from this office during this investigation.
61. The Council wrote to Mr & Mrs X on 25 March 2019 outlining the panel’s findings.
62. In April 2019 the Council completed a review of Mrs Y’s financial contribution in line with annual changes to benefits. The Council wrote to Mrs X on 11 April 2019 informing her of the outcome and included an assessment of Mrs Y’s finances. Mrs Y’s weekly personal budget was £418.54 per week. She had a total income £468.88, the protected element being £209.10 leaving £259.78 assessable income before allowable DRE. The Council allowed £18.89 DRE, and concluded the assessed weekly contribution was £224.00 per week.
63. Mrs X remained dissatisfied and brought a complaint to the Ombudsman. During my discussions with Mrs X she says she has only ever acted in Mrs Y’s best interest but in doing so she unintentionally caused herself financial disadvantage. She referred to the matter of utility bills and the cost of heating the home for the comfort of Mrs Y. I asked Mrs X to provide me with utility bills. She has not done so.

Analysis

64. It is not the Ombudsman’s role to decide what a person should pay towards their care, or what DRE should be allowed, that is the Council’s role. The Ombudsman cannot question the merits of decisions made unless there is evidence of procedural fault which calls that decision into question.
65. I am satisfied the Council properly considered Mrs X’s request to include items as DRE. The matter was considered by the charging appeal panel. I find no evidence of fault in the process. The panel considered the information submitted by Mrs X and used its professional judgement to decide what was eligible DRE and what was not. As there is no evidence of fault in the way it came to this decision, I cannot comment on the merits of the decision reached, no matter how strongly Mrs X may disagree with it.
66. There has been considerable correspondence between Mrs X and the Council about this matter. I am satisfied the Council has explained its position and why some expenditure has not been included.
67. I find no fault in the Council’s decision not to consider gardening, cleaning costs and shopping as disability related expenditure unless receipts are provided. It is open to Mrs X to now provide receipts and the Council will reconsider its decision.
68. I appreciate that Mrs Y’s granddaughter had a lot to cope with around Mrs Y’s discharge from hospital. I cannot determine the circumstances in which she agreed to sign a financial declaration. The Council has apologised to Mrs Y’s granddaughter for any distress caused. The Ombudsman could achieve no more.
69. It is clear Mrs Y had capacity to decide to go into the care home to await Mrs X’s return from holiday. The hospital concluded she was medically fit for discharge not the Council. Mrs Y was not considered to have reablement potential, so she was not eligible for a period of free care. There is no automatic entitlement to reablement care services. The Council is not at fault for levying the charges it did for Mrs Y’s stay in residential care.
70. The Council was unable to secure home care services when Mrs X returned home. It offered Mrs X direct payments to enable her to source care privately. The cost of the care was greater than the allocated budget, so a top-up was required. The Council did agree to pay the top-up albeit after Mrs X’s repeated requests. The Council should have been aware it, not Mrs Y, was liable for the top-up if no other care agency could be found to provide care within the budget. The Council ceased paying the top-up when it offered Mrs Y a commissioned care package. Mrs X says the times of the visits did not meet Mrs Y’s needs. I have considered the times of visits between both care agencies. There is some difference to the lunch and teatime calls, but the variation is within acceptable limits. The Council discharged its duty in offering a commissioned care package. It is not at fault for ceasing payment of the top-up after this point.
71. The Council acknowledged and apologised for the errors in handling Mrs X’s and delivered mail. This is a sufficient remedy.

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Final decision

72. There is no fault by the Council in levying a charge for Mrs Y’s stay in a residential care home.
73. There is no fault in the way the Council dealt with Mrs X’s request to include items as DRE.
74. There is no fault by the Council in refusing to pay the top-up fee from the point it offered Mrs Y commissioned care on 23 July 2018.
75. The Council apologised for any distress caused to Mrs Y’s granddaughter by a social worker during Mrs Y’s discharge from hospital to residential care. This is a satisfactory remedy.
76. The Council apologised for the errors in handling her hand delivered correspondence. This is a sufficient remedy.
77. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman