Summary: Mr and Mrs F complain on behalf of their adult son, Mr M, that the Council is charging too much for the care it provides. The Ombudsman has found no fault by the Council.

The complaint

1. Mr and Mrs F complain on behalf of their adult son, Mr M, that the Council is charging too much for the care it provides. They say Mr M cannot afford to pay the amount demanded and to do so would cause him financial hardship.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I spoke to Mr and Mrs F about their complaint and considered the Council’s response to my enquiries and:
• The Care Act 2014 (“the Act”)
• The Care and Support Statutory Guidance (“the Guidance”)
• The Care and Support (Charging and Assessment of Resources) Regulations 2014
• The Council’s “Calculating Contributions towards a Personal Budget” Policy
5. I sent Mr and Mrs F and the Council my draft decision and considered the comments I received.

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What I found

Personal budget

6. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. A personal budget sets out the cost to the local authority of meeting eligible needs, the amount a person must contribute to that cost, and the amount the council must contribute. A personal budget can be administered as direct payments to enable people to commission their own care and support.

Charging for care and support

7. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. If a person has less than the upper capital limit (£23,250), they only have to pay an assessed contribution towards the cost of their care.
8. The Council has discretion to allow short term waivers from collecting contributions for reasons of financial difficulty or extreme hardship.

Financial assessments and disability related expenses

9. In assessing what a person can afford to pay, a council must take into account their income, such as pensions or benefits.
10. If a council takes a disability benefit into account, they must also assess disability-related expenses (DREs) in the financial assessment. This is because the Guidance says councils must leave individuals with enough money to pay for necessary disability related expenditure to meet any needs not being met by the council.
11. DREs are costs that arise from a disability or long-term health condition. Councils should not be inflexible in the costs they accept and should always consider individual circumstances. The Guidance gives examples of what may be disability related expenditure. These include the costs of any specialist items needed to meet the person’s disability needs, for example maintenance of disability-related equipment, and transport costs over and above the mobility component of DLA.
12. The Council makes a standard allowance of £20.00 per week for DREs. If a person’s costs are higher than this a full assessment of their costs will be made.

Minimum income guarantee

13. Councils must ensure that a person’s income is not reduced below a specified level after charges have been deducted. The minimum amounts are set out in the Regulations. Councils have discretion to set a higher level if they wish and the Council previously had a more generous level than in the Regulations.
14. The Council decided to change its policy to bring it in line with the Regulations. In April 2019 it reduced the minimum income guarantee level to £154.45 per week, in line with national levels.

NHS continuing healthcare

15. NHS continuing healthcare is a package of care arranged and funded solely by the health service in England for a person aged 18 or over to meet physical or mental health needs that have arisen because of disability, accident, or illness. It may be provided at home or in a care home. (NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012)

What happened

16. Mr M has physical and learning disabilities and does not have capacity to make decisions about his care or finances. He lives with his parents, Mr and Mrs F, who are his court appointed deputies. Mr F says they divide bills and household costs equally between the three members of the household.
17. Mr M received direct payments to meet his care and support needs, which include attending a day centre. He also received some continuing healthcare funding from the NHS.
18. The Council had assessed Mr M as needing to contribute to the cost of his care. In February 2019 Mrs F told the Council Mr M could not afford to pay his contribution and that to do so would leave him in financial hardship and debt. She completed an income and expenditure form. She says a social worker helped the family assess its expenditure to see if money could be saved, but this had not proved possible.
19. In April 2019 the Council implemented its new policy which reduced the minimum income guarantee level.
20. The Council assessed Mr M’s finances in April 2019. It calculated his income, capital, and his level of minimum income. It then considered any extra expenses Mr M has because of his disability. The Council included the following weekly DREs:
• incontinence items £3.46
• wheelchair repairs £12.50
• a nebuliser £0.83
21. Mr and Mrs D had also asked the Council to consider physiotherapy costs and transport costs. DRE allowances are unlikely to be approved for health-related treatments as these are the responsibility of the NHS. Transport costs are covered by the mobility component of DLA.
22. The Council determined Mr M should contribute £25.87 per week to the cost of his care. It then considered Mr and Mrs F’s income and expenditure form, which showed that Mr M could not afford to pay this contribution as doing so would leave him with a deficit of £24.63 per week. The Council therefore wrote to Mr and Mrs F on 3 May 2019 agreeing to waive Mr M’s contribution for a month. It then extended the waiver until 4 August 2019.
23. Mr and Mrs F complained that Mr M would not be able to pay the contribution once the waiver ended.
24. The Council wrote to Mr and Mrs F on 1 August 2019. It said it considered that “the household had sufficient weekly income and savings for you to be able to make provision for the payment of your new contribution amount.” As a result, it decided a waiver could not be applied for reasons of financial difficulty or extreme hardship. The Council directed Mr and Mrs D to the Ombudsman if they remained dissatisfied. Mr and Mrs F complained to the Ombudsman

Events since the complaint

25. The Council assessed Mr M’s finances again in August 2019 and completed an audit of his direct payments. It concluded Mr M had not had to pay a contribution from March 2018 to February 2019. He had however paid a contribution, and so was owed a refund of £896.
26. On 12 August 2019 the NHS agreed Mr M was eligible for full CHC funding. The Council therefore wrote to Mr M to confirm his direct payments would be ending.

My findings

27. The Council told Mr and Mrs D that it considered the household had sufficient weekly income and savings. When assessing Mr M’s finances and the contribution he should make to his care costs, the Council must only assess Mr M’s income and savings, not the household’s.
28. I have reviewed the April 2019 and August 2019 financial assessments. They only take into account Mr M’s benefits and correctly disregard the relevant benefits. The Council left Mr M with a minimum income of £170.23 per week and allowed disability related expenditure of £20 per week, in line with its policy, which is sufficient for the DREs it had identified.
29. I therefore find there was no fault in the Council’s calculations and the financial assessment was completed in line with the requirements of the law, statutory guidance and the Council’s own policy.
30. The Council considered an Income and Expenditure form completed by Mr and Mrs F which showed Mr M did not have enough income to pay his contribution. It therefore agreed to waive his contributions for three months.
31. When it considered whether to continue the waiver it decided there were no reasons of financial difficulty or extreme hardship. This is a decision the Council is entitled to make and without evidence of fault in the way it was made, the Ombudsman cannot challenge it, even though Mr and Mrs F disagree with it.
32. The contribution towards his care costs left Mr M with a deficit in his disposable income, but this injustice is not caused by any fault of the Council. Mr M might be able to seek some money management advice to consider any areas he could reduce his expenditure and provide more disposable income.

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Final decision

33. There was no fault by the Council. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman