Summary: North Yorkshire County Council delayed assessing Mr B’s finances. It also most likely charged Mr B too much for his care between that period. We consider the Council’s fault caused Mr B and his mother distress which it has agreed to remedy.

The complaint

1. Ms A complains the Council delayed completing a financial assessment of her son, Mr B, after a change in his support in July 2018. That delay was avoidable and unacceptable. She says she is unhappy the Council has asked for a backdated contribution to the cost of her son’s care from July to October 2018, rather than from when it completed the financial assessment.
2. Ms A says she and Mr B lost the opportunity to cancel the support package and avoid the costs. They do not consider the support package offered value for money. Further, she says events have caused her avoidable anxiety and stress.
3. Ms A would like the Council to cancel its invoice for Mr B’s contribution to his care costs during the period of the assessment. She said the Council should invoice Mr B from the date it completed the financial assessment.

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The Ombudsman’s role and powers

4. 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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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 read the papers submitted by Ms A, and discussed the complaint with her. I have considered the Council’s comments about the complaint and its supporting documents. I have also taken the relevant law and guidance into account before coming to a view. Ms A and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Background

8. Mr B has autism and learning difficulties.
9. In February 2016, a social worker decided Mencap could support Mr B at home for 13 hours each week. The Council completed a financial assessment two months later which confirmed Mr B did not have to pay anything towards his support. Mr B received the following benefits:
• Disability Living Allowance (DLA) Care Component (low rate); and
• Employment Support Allowance (ESA) - Work Related Group
10. In December 2016, the social worker noted Ms A supported her son to manage his DLA benefits after receiving a letter from the Department for Work and Pensions (the DWP). Subsequently Mr B’s DLA benefits increased to the high rate. By that point, DLA had changed its name to Personal Independence Payment (PIP). This meant Mr B should have started to pay towards his care from December 2016.
11. A month later, the social worker reassessed Mr B’s needs and looked to move Mr B away from Mencap and into sheltered accommodation. The social worker also completed a mental capacity assessment and decided Mr B lacked capacity to manage his finances.
12. Mr B’s relationship with Mencap gradually broke down, to the point in July 2018 when it ended their support. A new social worker reassessed Mr B’s needs that month and decided a new care agency called Sunningdale could support Mr B for six hours each week. During the assessment, the social worker noted that she told Mr B his care may be chargeable (depending on the result of a financial assessment). However, she also noted that talking about finances made Mr B tense and anxious. Ms A supported Mr B during the assessment.
13. In late September 2018 Ms A told the Council she had returned a letter to the DWP about Mr B’s ESA benefit (which later increased). A Benefits, Assessment and Charging (BAC) Officer said the Council would need to update the financial information it held about Mr B. They agreed to speak in a few weeks.
14. On 19 October 2018, the BAC Officer offered an appointment to Ms A to complete the financial assessment. Ms A declined. Therefore, a week later, the BAC Officer completed the financial assessment after checking information from Scarborough Council and the DWP. The information showed Mr B’s benefits had significantly increased since it last completed a financial assessment (in February 2016). They included:
• PIP Daily Living (high rate) – this was previously the DLA Care Component
• ESA - Work Related Group
• ESA Premiums – Severe Disability and Enhanced Disability

Therefore, Mr B would need to contribute £120.26 each week towards his support, which it would backdate to 9 July 2018 (when the support started).

15. Ms A was unhappy that Mr B had to contribute to his support, and she stopped that support package because it did not offer value for money.
16. In December 2018, the BAC Officer offered to arrange a different Officer to visit her and complete a new financial assessment. However, Ms A did not reply.
17. In March 2019, the Council responded to Ms A’s complaint. It said:
• It had previously advised Ms A that if Mr B’s benefits changed, she should tell the Council and it may need to complete a new financial assessment.
• Mr B’s benefits changed significantly between 2016 and 2018.
• Ms A declined to take part in the financial assessment in October 2018, so had to complete the assessment based on other sources.
• It was correct to backdate Mr B’s contributions to 9 July 2018 because that was when his support started.

Analysis

18. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
19. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25%. The Council can take a person’s capital and savings into account subject to certain conditions. 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. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)
20. First, I refer to the first bullet point in the Council’s response to Ms A (paragraph 19). The Council’s social care records show that when Ms A supported Mr B to increase his benefits, she told the Council each time (December 2016 and September 2018). Therefore, I consider the Council was wrong to say Ms A did not update the Council. Rather, I would say the Council missed the opportunity to complete a financial assessment when the social worker reassessed Mr B’s needs in early 2017. That was fault. However, I do not consider that missed opportunity caused Ms A and Mr B any injustice. If the Council completed a financial assessment in early 2017, Mr B would have had to start paying for his support. Because Mr B received the high rate of the PIP. That increase in his benefits would have caused his care to become chargeable. Therefore, I consider there is no injustice to Mr B between early 2017 and July 2018. Rather, he has benefited from the Council’s fault.

The July 2018 needs assessment

21. Ms A said the social worker did not make it clear the support could be chargeable. I have reviewed the social worker’s assessment and support plan documents. Those documents note that Ms A managed her son’s finances, because Mr B lacked capacity to do so.
22. Mr B’s support plan states: “Services provided by [the Council] are subject to a financial contribution dependent on your financial circumstances. You will be advised of the weekly charge relating to the overall cost for providing your support following completion of a full, means-tested financial assessment”. Mr B signed that plan. The social worked also notes she sent a copy of the leaflet ‘What You Should Expect to Pay for Care Services’ to Mr B.
23. During this investigation, Ms A said she understood the social worker mentioned doing a new financial assessment in July 2018. Therefore, I am persuaded the Council clearly told Ms A and Mr B the care could be chargeable.

The delayed financial assessment

24. I agree with Ms A’s view the Council delayed carrying out a financial assessment after July 2018.
25. The Council has explained why it delayed carrying out a financial assessment after September 2018, because it was trying to arrange the meeting with Ms A. However, it has not said why it delayed completing the financial assessment after the needs assessment.
26. The Council told me the trigger for the financial assessment was when Ms A sought support completing an application to increase Mr B’s ESA benefits. However, I consider the Council should have completed a new financial assessment when Mr B’s care package started in July 2018.
27. The Council has a Charging for Home Care and other Non-Residential Community Based Services Financial Year 2018-2019 policy. It says if someone agrees to a financial assessment, the social worker should refer the case to a BAC Officer to complete the financial assessment. The social worker should highlight any financial representative, who would support the financial assessment.
28. I have not seen any evidence the social worker referred Mr B’s case to a BAC Officer in July 2018. That was not in line with its policy, which was fault. I can understand how that delay would have been stressful for Ms A. The Council should remedy that injustice.

The backdated care charges

29. I do not consider the Council was wrong to backdate the care charges to July 2018 from October. As I have already said, the Council clearly explained that Mr B’s care could be chargeable in July, when his support started.
30. However, I am not persuaded the Council has fairly calculated the backdated care charges Mr B should pay from July to September. Based on the evidence I have seen, between July and September 2018, Mr B received the PIP Daily Living (high rate) and ESA - Work Related Group.
31. Mr B did not receive the two ESA Premiums between July and September 2018. I understand Ms A approached the Council for support to obtain those in September, and they started in October.
32. I consider the Council has most likely charged Mr B too much for the period between July and September 2018. That was fault. The Council should have only considered the benefits Mr B received between July and October. The Council should have excluded the ESA Premiums from any backdated charges. The Council can consider the ESA Premiums towards Mr B’s care costs when he started to receive them. That fault has caused an injustice to Mr B and Ms A which it needs to remedy.

Agreed actions

33. Within four weeks, the Council should apologise to Ms A and Mr B for the distress caused by:
• The delay completing the financial assessment after July 2018; and
• Incorrectly including the ESA Premiums in the backdated care charges between July to October 2018.
34. Within eight weeks, the Council should:
• Recalculate the backdated care charges between July and September 2018 considering the fault I have identified with its calculations.
• Ensure the relevant staff are aware they can only consider service user’s benefits for periods of care when the service user is in receipt of those benefits.
35. The Council has accepted my recommendations.

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Final decision

36. The Council delayed completing the financial assessment in October 2018 and most likely charged Mr B too much for his care between July and September 2018.

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Investigator's decision on behalf of the Ombudsman