Summary: Miss X complained the Council failed to carry out an appropriate financial assessment of her contribution to her care charges and failed to properly consider her disability related expenditure. The Council was at fault. It delayed responding to Miss X, failed to properly consider her disability related expenditure and failed to clearly communicate with Miss X. It has agreed to apologise to Miss X, to waive the requirement to pay any outstanding charges and to pay her £300 to acknowledge the distress this caused. It has also agreed to review her care and support plan and her financial assessment and to agree the best way to communicate with Miss X in future.

The complaint

1. Miss X complained the Council failed to carry out an appropriate financial assessment of her contribution to her care charges. In particular, it failed to properly consider her disability related expenditure. This complaint follows on from a previous Ombudsman investigation where we found fault in how the Council dealt with Miss X’s financial assessment and with her disability related expenditure and this has yet to be resolved. This has caused distress and anxiety to Miss X.

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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 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 have spoken to Miss X’s advocate and considered the information she provided on Miss X’s behalf. I have considered the Council’s response to my enquiries and the relevant law and guidance.
6. I gave Miss X and the Council the opportunity to comment on a draft of this decision. I considered the comments I received before reaching a final decision.

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What I found

7. The Care and Support Statutory Guidance sets out that where a local authority arranges care and support to meet a person’s needs, it may charge the adult, except where the local authority is required to arrange care and support free of charge. Where it decides to charge, it must follow the Care and Support (Charging and Assessment of Resources) regulations and have regard to the guidance. The overarching principle is that people should only pay what they can afford. Where a local authority has decided to charge, except where a light touch assessment is permissible, it must carry out a financial assessment of what the person can afford to pay and, once complete, it must give a written record of that assessment to the person.
8. 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) Regulations 2014. In addition, where a person receives benefits to meet their disability needs that do not meet the eligibility criteria for local authority care and support, the charging arrangements should ensure that they keep enough money to cover the cost of meeting their disability related expenditure (DRE). There is no set list of what is DRE. The Care and Support Statutory Guidance provides examples but says ‘any reasonable additional costs directly related to a person’s disability should be included’.

Background

9. Miss X has ME/chronic fatigue syndrome. She has eligible care needs and receives direct payments to employ a carer, to meet those needs.
10. In May 2018, in a previous Ombudsman investigation, we found fault with the way the Council communicated with Miss X regarding her personal contribution to her care costs. It also failed to explain what it had and had not included as disability related expenditure (DRE) when it calculated her contribution to her care costs. The Council agreed to write off Miss X’s arrears up to the end of July 2016. The Council also agreed to review Miss X’s disability related expenditure. It asked her to provide further information about her private health care treatment, it agreed to include the cost of her computer tablet as DRE, to consider whether it should treat the costs of security fencing as DRE and agreed to review her expenditure for mobility related expenses.

What happened

11. In an email exchange in April 2018, Miss X’s social worker asked Miss X to provide evidence of why she needed support from a private doctor, so they could consider if this was a DRE. Miss X provided some information from the NHS ME service. The social worker agreed to put forward Miss X’s need for a computer tablet as a DRE and accepted the supplements Miss X took were DRE.
12. In May 2018 Miss X’s advocate contacted the Council requesting confirmation of what medical expenses the Council accepted as DRE. In June 2018 the Council confirmed it would accept Miss X’s private doctor consultation costs as DRE and agreed to backdate them. The social worker also confirmed all direct payment related requests and information would come through them so they could explain it and pass it on to Miss X.
13. In July 2018 the finance team reassessed Miss X’s finances. The social worker passed on to Miss X the information from the finance team. This set out that it included some medical costs and security fencing in her DRE. It had recalculated her personal contribution to her care charges as £33.77 per week (reduced from £43.48 per week) and had backdated this to April 2017. Miss X raised concerns about the figures used in the calculation of her financial contribution. She said the capital figure was wrong, fencing costs were included, but not the computer tablet or supplements which were previously agreed. The letter did not provide a breakdown of what was included in the assessment of her DRE. Miss X asked that her contribution not be backdated to April 2017 as she was not to blame for the delays. She later provided further information about her medical expenses which the social worker forwarded to the finance team.
14. Miss X contacted the Council in August 2018 as she had received a letter from the finance team. She asked if this was the new assessment based on the updated information she provided. The social worker said this was an automated letter which did not contain any new information. They thought it would be helpful to have a meeting to go through Miss X’s outgoings to confirm what could be considered as DRE. They also asked Miss X about the best way to communicate with her. Miss X agreed it would be helpful to meet and confirmed her preferred method of communication was through email. She offered to pay £22 a week. She also asked that her tv package be considered as a DRE and queried the amount of savings shown on the financial assessment.
15. In late August Miss X contacted the Council and asked that it contact her via her carer due to a relapse in her condition. Miss X’s social worker told Miss X’s carer they would be away until mid-September and would contact them on their return.
16. Miss X emailed the social worker in September 2018 requesting an update. She also contacted her MP for assistance. In October 2018 Miss X’s advocate contacted the Council to request an update. The social worker responded in mid-October. They confirmed Miss X’s contribution was £33.77 per week which was backdated to April 2017 and this included the additional costs she had informed them of. Miss X queried exactly what DRE was included in this assessment and how this was calculated. The social worker agreed to request a detailed breakdown from the finance team. Miss X and her advocate requested an update in November 2018. In December 2018 Miss X requested a breakdown of her DRE so she could check the figures and start making contribution payments. She offered to pay £22.31 per week which she agreed to backdate to April 2018 as a way of bringing the matter to a close. Miss X did not agree the figures should be backdated to April 2017 due to the Council’s delay in providing a clear breakdown. The social worker told Miss X the finance team would complete the reassessment by 31 December 2018 and it had advised her MP of this. It did not accept her payment offer of £22.31 per week.
17. The social worker visited Miss X and her advocate in early January. They went through a letter setting out the full reassessment of Miss X’s financial contribution which included a full breakdown of her DRE. The letter explained Miss X could obtain help with travel costs to hospital appointments from the NHS so it would not include travel costs in her DRE. It acknowledged how frustrated she was by the wrong capital figure showing but as her savings were always below the threshold of £14,250 the wrong savings figure would not affect her financial assessment.
18. The letter set out what the Council included in her DRE. It had not included the costs of some of the medication Miss X took but said it would consider this if she got a letter from her GP stating this was medically necessary. It said it would waive costs prior to 16 July 2018. The letter set out Miss X’s weekly assessed charge as £56.67 per week. However, this figure was wrong as the Council had failed to deduct Miss X’s housing costs related to rent and council tax in the calculation. At the meeting the social worker advised Miss X her care contribution would not be backdated.
19. Miss X says the social worker agreed to go back to clarify: if the Council would pay for a letter from her private doctor which supported the need for the medication so the Council could consider the costs; transport costs as the service the Council referred to did not cover transport to the type of appointment Miss X attended; and the cost of the tv package. The social worker arranged to meet with Miss X in February 2019 to respond to her queries and provide an update.
20. The social worker emailed Miss X to rearrange the meeting arranged for February 2019, as they had not received the information they needed from the finance team, to clarify the reassessment.
21. Miss X’s advocate contacted the social worker in April to request an update. The social worker said they had not received the information they requested. In June 2019 Miss X emailed her advocate for an update, who agreed to contact the social worker again. The advocate emailed the social worker in June 2019 and got no reply. They emailed again in early July and received an automated message that they were out of the office until the end of the month. The Council then confirmed the officer was off long term. Miss X’s advocate complained to the Ombudsman, on Miss X’s behalf about the continued delays.
22. In September 2019, the Council confirmed to the Ombudsman the finance team had received a request from Miss X’s social worker to reconsider her financial assessment. It aimed to do this within 21 days.
23. In response to my enquiries the Council said it had reassessed Miss X’s contribution to include the cost of her computer tablet which it had previously agreed. It assessed Miss X’s contribution as £21.31 per week. It also amended Miss X’s savings figure to more accurately reflect her savings level, although this does not impact on the assessment.
24. The Council says it did not carry out an annual review of Miss X’s financial assessment in April 2019 due to capacity issues, so the latest assessment does not accurately reflect Miss X’s current costs. In addition, it has not reviewed Miss X’s care assessment and support plan since late 2017. It says this is because Miss X wanted to resolve the issues with her financial assessment first.

Findings

25. The Council carried out a reassessment of Miss X’s financial contribution to her care costs in June 2018. In its letter it explained it had included some new items as disability related expenditure. However, it failed to provide a full breakdown of what it had and had not included as her DRE in this assessment and this was fault. Without this information Miss X could not tell whether all the items she had queried and raised with the social worker were included in the assessment.
26. It was not until January 2019 that the social worker had the necessary breakdown of DRE available to share with Miss X. The Council then failed to address the queries Miss X raised with the social worker and failed to include the cost of the computer tablet in the assessment, which it had already agreed was a DRE. It did not include any reference to the supplement costs Miss X paid for and made no reference to the tv package costs Miss X requested as DRE. It did not carry out a further reassessment until after Miss X complained to the Ombudsman.
27. Miss X provided me with copies of emails between her and the social worker which are not included in the Council’s running records. As such the Council’s records do not accurately reflect all the relevant communication between Miss X and the Council regarding Miss X’s DREs. This is fault.
28. The Council agreed to communicate with Miss X by email. It also agreed that information regarding her financial assessment should be communicated through her social worker. This was to reduce any anxiety caused to Miss X by unexpected letters. The Council accepts this method of communication with Miss X has not worked satisfactorily and says this was due to capacity issues. The Council’s failure to communicate effectively with Miss X is fault. It says it will contact Miss X to agree an arrangement and has suggested that it send information regarding Miss X’s financial assessment via a nominated trusted person of her choice. It is for the Council to decide what reasonable adjustments to make in the light of a service user’s disability. It is open to the Council to propose an alternative method of communication to Miss X and to agree a suitable way forward.
29. The delay in sorting out Miss X’s DRE has caused Miss X significant anxiety and distress. Miss X and her advocate acting on Miss X’s behalf, had to regularly chase the Council for a response to the outstanding queries. Miss X has not, yet, paid her contribution to her care costs so the debt has built up. Miss X received direct payments and was aware she was required to pay a contribution to her care costs. Miss X was prepared to do so, however, the delay in resolving this made it difficult for Miss X to budget appropriately.
30. The Council has not yet reviewed the assessment to reflect any changes in costs/income in April 2019. This delay is fault. This means the financial assessment is still not accurate. In addition, Miss X does not have an up to date care and support plan.

Agreed action

31. Within one month of the final decision on this complaint, the Council has agreed to apologise to Miss X and pay her £300 to acknowledge the distress and anxiety caused by it delays in resolving her financial assessment.
32. I had recommended the Council waive some outstanding care charges. The Council has said it will waive the requirement for Miss X to pay any outstanding care charges up to 27 July 2020 so as to draw a line under the previous financial assessment.
33. I recommended, within three months of the final decision, the Council should carry out a care and support plan review and review Miss X’s financial assessment. The Council says it will complete a full review of Miss X’s care and support needs; her direct payment and will complete a new financial assessment. It aims to do this by 27 July 2020. It says this will include full consideration of her eligible care and support needs; history of use of her direct payment and determine which costs should be met through her direct payment and which should be met through DRE in her financial assessment. It says the review will be a joint care and financial review to avoid any confusion in its communication with Miss X. It says the new financial assessment will apply from 28 July 2020 which is the date the Council is applying an annual uplift of care charges in 2020. I am satisfied this is an appropriate remedy.
34. The Council, as part of the review, will agree with Miss X, taking into account her disabilities, how best to communicate information with her.
35. Within three months of the date of this decision the Council has also agreed to review its procedures and remind staff of the need to ensure all relevant communication between officers and service users is recorded in the Council’s running records.
36. The Ombudsman will require evidence to show the Council has carried out these actions.

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Final decision

I have completed my investigation. There is evidence of fault by the Council causing injustice to Miss X, which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman