Summary: Mrs X complained about the advice the Council gave her about disability related expenses and its decision not to make allowance for all the expenses she claimed when calculating the contribution she had to pay towards her care costs. The Council was not at fault.

The complaint

1. Mrs X complained about the advice and information the Council gave her in 2016 about how much she should contribute to her care costs, particularly in relation to her disability related expenses. As a result, she says her contributions were too high and this caused her to accrue arrears.
2. Mrs X also complained that when it negotiated a repayment plan for the arrears the Council did not take into account her other debts and inappropriately advised her not to repay her credit cards.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We expect a complaint to be made within 12 months of the person having notice of the event they are complaining about. Mrs X complains about a financial assessment in March 2016, in which she says she was not given advice or information about allowances that can be made for disability related expenditure. She was aware in June 2017 that such allowances could be made because an allowance was made for additional laundry costs. However, she says she was not aware, until she sought advice in 2019 that she could ask for allowances for other costs, such as gym membership and broadband costs. On this basis I exercised discretion to make enquiries, although it was not clear whether there would be sufficient evidence to reach conclusions about the meeting in March 2016.
7. 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.
8. 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

9. I considered:
• the information provided by Mrs X and the Council;
• relevant law and guidance, as set out below;
• our guidance on remedies
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

11. 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)
12. Councils must assess a person’s finances to decide what contribution they should make towards their care costs. The assessed charge should not reduce their income below the “minimum income guarantee”, which is set at the level of 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. The statutory guidance gives examples of the sorts of costs that should be taken into account. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010, Care and Support Statutory Guidance, Annex C at paragraphs 39 to 41 )
13. Where a person has accrued a debt, councils can use their powers under the Care Act 2014 to recover that debt. Councils are encouraged to:
• discuss the debt with the person or their representative;
• act reasonably;
• agree arrangements for debt repayments with the relevant parties;
• ensure repayments are affordable; and
• only consider court action after all other reasonable avenues have been exhausted.

Care and Support Statutory Guidance, Annex D

What happened

14. Mrs X lives at home and has a care package. In March 2016, the Council carried out a financial assessment. An officer visited Mrs X at home. I have seen the financial assessment form completed at that visit. It includes a section on disability related expenditure (DRE), most of which is crossed through as not being applicable. The form does show the Council considered a DRE for gas and electricity. The Council said that the amounts involved were lower than the rates set out in its policy so were not included as a DRE. Mrs X signed the form, agreeing a number of declarations, including that any queries about claims for DRE may need to be verified.
15. The Council wrote to Mrs X in May 2016 to say she would need to contribute £11.84 per week to her care costs. Prior to this she had not been required to contribute towards her care costs. The letter included a copy of the financial assessment, showing the capital, income and allowances taken into account when calculating the assessed contribution. The letter stated Mrs X should tell the Council if her financial position changed.
16. The Council carried out a further financial assessment in June 2016, following her move to a new house, which reduced her rent payments. It wrote to her to say she now needed to contribute £73.69 per week from the date she moved.
17. In July 2016, it carried a further financial assessment because Mrs X had moved from receiving employment and support allowance (ESA) to receiving a retirement pension. The assessed contribution reduced to £34.13 per week. In August 2016, it carried out a further financial assessment because the previous one did not include her pension credit income. This increased Mrs X’s contribution to £70.01 per week. The Council said Mrs X had not told it she was receiving pension credits.
18. In a complaint made on her behalf in April 2019, Mrs X said she complained in July 2016 and spoke to an officer, who told her the assessed contribution should be £11.30 per week. She says she therefore assumed the other letters were wrong and decided not to make any contributions. Council records show she queried the calculation of the contribution in July 2016 and an officer went through the calculation with her by telephone. I have seen no record that Mrs X asked for any further clarification between July 2016 and June 2017.
19. Since Mrs X did not make any contributions from November 2016 onwards, arrears built up, which were just under £4,000 by June 2017. Mrs X met a Council officer to carry out a fresh financial assessment and discuss a repayment plan to address the arrears. They completed an income and expenditure form together. The expenditure section included two weekly payments for credit card arrears. The form states Mrs X said she could afford “possibly £15-£20 per week” to repay the care costs arrears. A direct debit was set up for £20 per week, which Mrs X started paying in June 2017.
20. The financial assessment record for June 2017 indicates a discussion about Mrs X’s disability related expenditure (DRE). The officer included an allowance of £3.65 per week for her additional laundry costs.
21. The Council carried out a further financial assessment in August 2018 and wrote to tell Mrs X the revised assessed contribution was £84.12 per week from 3 September 2018.
22. Mrs X stopped paying £20 per week towards the care costs arrears in November 2018 and cancelled the direct debit in January 2019. The Council sent her an income and expenditure form to complete in January 2019 so it could assess what she could afford to pay.
23. Mrs X made a formal complaint in April 2019. She said the Council:
• failed to carry out a financial assessment in March 2016 and failed to explain the income and expenditure it took into account when deciding she would need to start contributing to the cost of her care;
• wrongly advised her not to repay her credit card debts and wrongly imposed a repayment plan that was not affordable for her;
• failed to consider her DREs in 2016, and had not considered all possible DREs subsequently.

She set out the DREs she wanted the Council to allow for and back-date to March 2016.

24. The Council investigated and responded to her complaint in May 2019. The complaint was not upheld. The Council said DREs were discussed at financial assessment meetings, and the assessments were correct. It explained the reasons for the various re-assessments. It later agreed Mrs X’s DRE claim should be considered further by a social worker, following which further allowance was made with effect from September 2019.
25. In its response to my enquiries the Council said:
• it had agreed a DRE for Mrs X’s gym membership as the choice of gym was related to her dignity and independence from September 2019 when this was first requested;
• it had not agreed the broadband cost was a DRE as it was not required to meet her disability needs;
• it had not agreed the further £5 per week claimed for additional clothing and water costs relating to Mrs X’s incontinence but had agreed a DRE for laundry of £3.65 per week from June 2017.

My findings

26. Mrs X received care at home and the Council is entitled to ask her to pay an assessed contribution towards the cost of that care.
27. Mrs X complained the Council did not carry out a financial assessment in March 2016, when it first asked her to contribute, and did not discuss DRE allowances with her. She says if it had done, she would have claimed further allowances, which she did from April 2019 after seeking advice from the local Citizens Advice Bureau (CAB).
28. The records show the Council did carry out a financial assessment in March 2016, which Mrs X was involved in. The record does not show in detail the discussions at that time but section B of the form, which sets out the various types of DRE that can be considered, was completed. Given the lapse of time, there is no prospect of establishing in any more detail what was discussed. On balance, I am satisfied the Council did have some discussion with Mrs X about DREs and considered whether to make any allowances. It was not at fault.
29. The Council wrote to Mrs X with the outcome of the financial assessment. This clearly set out what it had taken into account when calculating the assessed contribution. Its letter said Mrs X should tell it about any financial changes.
30. As a result of various financial changes, the assessed contribution changed several times in 2016. I can understand Mrs X found that confusing. However, I am satisfied there were good reasons for the re-assessments and the calculations and financial assessments were completed in line with the requirements of the law and statutory guidance. The Council was not at fault.
31. Mrs X was aware she needed to contribute to her care costs and there is no record that she queried the amount due, other than in two telephone conversations in July 2016 during which an officer went through the calculations with her. If she still felt the calculation was wrong, it was open to her to make a formal complaint at that time.
32. As a result of her decision not to pay anything towards her care costs from November 2016, arrears built up. The Council met Mrs X in June 2017 to discuss a repayment plan. Mrs X says it advised her not to repay her credit cards. There is no evidence of this. The record shows the Council took into account payments she was making for arrears on two credit cards when calculating what she could afford to pay. There is no evidence the Council imposed a repayment plan on her. It considered her income and expenditure and Mrs X said she could afford £15 to £20 per week. It was appropriate for the Council to consider a repayment plan and there is no evidence of fault in the way it did this.
33. Also in June 2017 there was a fresh financial assessment and the record shows her DREs were discussed. The form does not provide a detailed account of the discussions and there is no other record of them. Given the lapse of time, I cannot establish in detail what was discussed but, on balance, I am satisfied there was a discussion. It is not my role to question the decisions about the DREs allowed where I have not found fault with the decision making process.
34. In 2019 Mrs X sought advice from the CAB, following which she made a formal complaint and requested further DREs to be taken into account. She asked for all the DREs claimed to be back-dated to March 2016 when she first starting contributing towards the cost of her care. She also asked the Council to waive the arrears. The Council investigated her complaint and responded. There was no fault in its complaints handling.
35. The Council met Mrs X to discuss further her request for DREs. The Council considered her requests and has explained why it has not agreed to take some of them into account. It agreed to make an allowance for the gym membership with effect from September 2019, which is when it reassessed her DREs.
36. It is not for the Ombudsman to decide whether or not the Council should include items as DRE. Our role is to consider whether there was fault in how the Council reached its decisions. I am satisfied the Council has properly considered the requests for DREs and, from 2019 onwards, where it has not agreed to them it has explained why. Since I have not found evidence of fault with that process, I cannot comment on the decisions the Council made.

Final decision

37. I have completed my investigation. I have not found evidence of fault.

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Investigator's decision on behalf of the Ombudsman