Summary: Ms C complained about the way in which the Council carried out her financial reassessment, and her appeal against her contribution. The Ombudsman found the Council failed to carry out an annual reassessment for Ms C. It also did not deal with her complaint in a timely manner. The Council has agreed to provide a remedy for Ms C’s distress and backdate her NiL contribution to April 2018.

The complaint

1. The complainant, whom I shall call Ms C, complained that when she appealed the contribution she had to pay for her homecare support in 2018, the Council failed to consider her appeal against the (new) Contributions Policy that had been in place since October 2017. Instead, the Council considered her appeal against the Council’s previous Contributions Policy, which was no longer in place (as it had been replaced by the new policy).
2. Ms C says that, as a result:
• She has had to continue to pay an assessed contribution towards her care package until January 2019, when the Council carried out a financial reassessment in line with the new charging policy and concluded she no longer had to pay a contribution. The Council has refused to backdate this to the date the new policy was introduced in October 2017.
• She has had to go through a very stressful and lengthy appeal in 2018, even though it should have been clear that she should no longer have to pay any contributions under the new policy.
3. Ms C also complained that the income officer, who had always dealt with her annual appeals before, acted in an unprofessional manner during her appeal in 2018:
• The officer continued to ask for more evidence, even though she had provided sufficient evidence to enable the officer to present the case to Panel.
• She accused her (or implied that she) had falsified documents.
4. Ms C says this was very distressing. Ms C is blind and she and her PA had to spend a lot of time on collecting relevant documents and communicating with the Council.
5. Ms C says that when she complained about this in November 2018, the Council failed to acknowledge her complaint, and failed to investigate it until she involved the Ombudsman. It took nine months before she received a response.

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The Ombudsman’s role and powers

6. 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)
7. 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

8. I considered the information I received from Ms C and the Council. I also carried out a telephone interview with Council officers. I shared a copy of my draft decision statement with Ms C and the Council and consider any comments I received, before I made my final decision.

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What I found

What should happen

9. The Care and Support Statutory Guidance (Care Act 2014) states that (8.17): “A local authority must regularly reassess a person’s ability to meet the cost of any charges to take account of any changes to their resources. This is likely to be on an annual basis, but may vary according to individual circumstances”.
10. It also says that (8.42): “Because a person who receives care and support outside a care home will need to pay their daily living costs such as rent, food and utilities, the charging rules must ensure they have enough money to meet these costs. After charging, a person must be left with the minimum income guarantee (MIG), as set out in the Care and Support (Charging and Assessment of Resources) Regulation 2014. In addition, where a person receives benefits to meet their disability needs that do not meet the eligibility criteria for care and support from the council, the charging arrangements should ensure that they keep enough money to cover the cost of meeting these disability-related costs”.

What happened

Ms C’s assessed client contribution

11. The Council says its policy is to ensure that every client has an annual financial (re)assessment, every year. If a client believes they cannot afford to pay (all of) their assessed weekly contribution, they can appeal the Council’s decision. As part of the appeal, the Council will ask the client to provide evidence of their household expenses, so the Council (a Panel) can decide if the Council should reduce the client’s contribution.
12. The Council introduced a new Contributions Policy in October 2017. The Council provided me with a copy of a letter it says it sent to all service users at the time. The letter said the Council would be in contact within the next ‘few months’ to explain the changes of the new policy and how they would affect the service user. Ms C is blind and told me she did not receive any communication, in a suitable format, about the new policy. She said she was therefore the Council had introduced a new charging policy.
13. The Council told me that:
• When it introduced the new policy, everyone with an existing financial contribution, needed to be re-assessed based on the new policy. Its implementation process had to ensure that everyone with a funded social care service would be fairly assessed, being in mind the thousands of people in receipt of an existing service.
• It decided that the fairest way would be to prioritise these re-assessments based on an alphabetical approach. As such, people with a surname beginning with “A” would be reassessed first.
• This meant that until a client had received its reassessment under the new policy, the client would be dealt with under the old policy.
14. Ms C made an appeal to the Council against her client contribution in 2018. The Council sent an appeal form to Ms C in August 2018 and asked her to complete it and provide as much information and supporting evidence about her expenses as possible. Ms C says the Council should have consider her appeal against the (new) Contributions Policy that had been in place since October 2017. Instead, the Council considered her appeal against the old Contributions Policy, a policy that was no longer in place (as it had been replaced by the new policy).
15. The Council carried out her financial reassessment against the new charging policy in January 2019. As such, Ms C’s weekly contribution reduced from £8.14 to NiL.
16. Ms C wanted the Council to backdate this to October 2017, when the Council introduced its new policy. However, the Council told me it has not backdated any changes in contributions that were as a result of the new policy, whether these were an increase or decrease. It said that any change in contribution only took affect from the date the re-assessment took place. The Council believe this was the fairest approach to prioritising the financial reassessments, following the introduction of the Contribution’s Policy.

Assessment

17. The Council is required to reassess a client’s contribution at least once a year. As such, once it introduced the new policy, it should have used the new policy whenever it carried out a person’s annual financial reassessment. This did not happen, which is fault.
18. As such, the Council should backdate Ms C’s NIL contribution to the date she should have received her first annual financial reassessment, following the introduction of the new policy in October 2017.
19. However, the Council has told me that it did not carry out an annual financial reassessment with Ms C for some time. This is fault. As such, I have chosen 1 April 2018 (six months after the policy was introduced), as the date the Council should have carried out Ms C’s annual financial reassessment. The Council should therefore backdate Ms C’s nil contribution to 1 April 2018.
20. The Council told me it now has a system in place where it sends out a form every year to its clients, in which it asks its clients to provide financial information to complete their annual financial reassessment.

The way in which Ms C’s appeal was dealt with by the Council

21. Ms C complained that the income officer who dealt with her appeal between September 2018 and January 2019, acted in an unprofessional manner. Ms C said the officer:
• Continued to ask for more evidence, even though she had provided enough evidence to enable the officer to present her case to the Panel.
• Implied that Ms C had falsified documents. The officer told her that: “anyone can knock up a letterhead”, with reference to the invoice she provided for her children’s tuition.
22. Ms C says the appeal process was very distressing, and it took her and her PA a lot of time to deal with it.
23. Ms C submitted documents for her appeal by email on 7 September 2018. However, the income officer told her on 19 September that Ms C needed to provide supporting evidence of her expenses, including her: mortgage, gas, electricity, TV and broadband expenses.
24. Ms C provided further evidence on 21 September 2018, by sending several emails with attachments. However, the officer told her on 10 October, that this did not yet include the supporting evidence she needed about her: gas, electricity, TV and broadband expenses. The officer explained she could therefore not yet present Ms C’s appeal to the panel.
25. Ms C replied the same day, saying it appeared the officer had not received one of her emails with evidence. However, she had still not been able to access gas / electricity account online. Ms C attached the following to this email:
• Mortgage statement dated 11/09/18 (£471.73 per month)
• A screenshot of her TV and Broadband bill (£91.26 per month)
26. It appears that the Council either did not receive this email and its attachments (perhaps because it was too large), or the officer failed to process the email / information at the time, as the officer asked Ms C again for this information in November 2018.
27. Ms C provided evidence of her electricity bills on 4 December, and evidence of her gas bill on 21 December 2018.
28. The income officer told Ms C on 17 January 2019 that she did not need any further information, because it would be likely she would no longer have to pay a contribution under the new charging policy. This was confirmed after Ms C’s financial reassessment a few days later.
29. The Council said that:
• Key to the appeal, is to provide supporting evidence about all household income and expenditure. This ensures the Panel can take everything into account when it decides if a person cannot afford their contribution, thereby increasing the chance of a successful appeal.
• The officer clearly listed the evidence she needed from Ms C in the email exchanges.
• As a gesture of goodwill, and in recognition of Ms C’s reliance on her PA to respond to the Council’s requests for evidence to support her appeal, the Council compensated Ms C for the 15 hours her PA time spent on the appeal.
• The Council has considered the evidence the Ombudsman has provided; a screenshot of the ‘missing email Ms C sent on 10 October 2018. As such, the Council feels it is appropriate to offer to reduce Ms C’s assessed contribution from the date it received this evidence (10 October 2018).

Assessment

30. Although I recognise Ms C’s challenges to obtain supporting evidence, I did not find fault with regards to the amount of evidence the officer had to ask, to try and maximise the chance of Ms C’s appeal being successful.
31. However, if the Council had carried out Ms C’s annual financial reassessment in / around April 2018, on the basis of the new charging policy (see paragraph 19 above), Ms C’s contribution would have already been nil in April 2018. This would have meant that Ms C would not have had to go through an appeal in September 2018 at all.
32. I am unable to come to a view if the officer said anything inappropriate to Ms C about the tuition invoice she provided. In the end, it is a case of Ms C’s view as to what was said and how she perceived this, and the officer’s view of what she said and how she meant it.

The way in which the Council dealt with Ms C’s complaint

33. In November 2018, Ms C made a complaint to the Council about the appeal process. She used a free online external tool that helps people make complaints. This tool is not run by or commissioned by the Council.
34. The Council told me it does not have any record to indicate it received a complaint from Ms C in November 2018. It told me it does not know how the online tool Ms C used links in with the Council’s system for receiving complaints and will look into this.
35. Ms C told me the Council did receive the complaint in November 2018. She spoke to the complaints officer in November 2018 and asked her to allow the Council some additional time to process her appeal. As such, it appears the officer closed the complaint at the time, believing it had been resolved by obtaining permission from Ms C for additional time. However, the officer did not inform Ms C of this, which is fault.
36. When Ms C did not hear anything from the Council, she made another complaint on 29 January 2019. In her complaint, she said it was unfair she had to wait 14 months to have a financial assessment under the new policy, during which time she had to continue to pay a weekly contribution. Furthermore, she had to waste a lot of PA hours on getting the evidence the Council needed for her appeal.
37. Ms C did not receive a response and chased her complaint on 29 April, 25 June, 9 July and 23 August 2019.
38. The Council says the manager who Ms C had written to, had left the Council in December 2018. The post remained vacant until June 2019.
39. When the Ombudsman contacted the Council in August 2019, it realised that it had not yet dealt with Ms C’s complaint. The Council subsequently provided a response on 3 September 2019.
40. The Council told me it recognises the distress and frustration caused by its delays and would like to apologise to Ms C and offer a remedy of £200 for this to Ms C.

Assessment

41. The Council knew about the complaint in November 2018 but failed to tell Ms C that it had closed her complaint, when Ms C agreed to give the Council extra time to progress her appeal. This was fault.
42. The Council also failed to ensure that the complaint was passed on to another officer / manager to deal with, when the manager who had received the complaint left. This was fault.

Agreed action

43. I recommended that, within four weeks of my decision, the Council should:
• Provide an apology for the faults identified above and the distress these have caused Ms C. It should also pay her £200.
• Backdate Ms C’s nil contribution to 1 April 2018.
• Review its system in place to ensure the fault identified in paragraph 42 will not happen again.
44. The Council has told me it has accepted my recommendations.

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Final decision

45. For reasons explained above, I have upheld Ms C’s complaint. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case

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Investigator's decision on behalf of the Ombudsman