Summary: Ms Y complains about the Council’s decision on Ms X’s care charge contributions and its handling of the dispute. The Ombudsman finds no fault in the Council’s decision on Ms X’s care charges but finds fault in its handling of the dispute. The Ombudsman recommends the Council provides an apology, pays £100 for distress and uncertainty and acts to prevent recurrence.

The complaint

1. Ms X’s representative, Ms Y, complains about the Council’s decision on Ms X’s care charges and its handling of the dispute. Ms Y says Ms X is suffering financially as she cannot afford the care charges and is now in debt.

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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 spoke to Ms Y and I reviewed documents provided by Ms Y and the Council. I gave Ms Y and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.

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What I found

Care charges

6. The Department for Health and Social Care publishes statutory guidance that councils must follow. I have summarised relevant parts below.
7. A council will carry out a care needs assessment to decide whether a person has care needs that it is must meet.
8. Councils must not meet needs by providing or arranging any health service or facility that should be provided by the NHS. This is to avoid duplication and to provide clarity about the limits of care and support, and the circumstances in which care and support should be provided by the council as opposed to health services.
9. A council will also carry out a financial assessment to see how much a person will contribute towards the costs of their care. A council should ensure it does not charge a person more than it is reasonably practicable for them to pay.
10. A council must ensure a person has enough money to meet their daily living costs such as rent, food and utilities. 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, they should keep enough money to cover these disability-related costs.
11. In assessing disability-related expenditure (“DRE”), councils should include items set out in the statutory guidance such as privately arranged care services or the additional cost of special dietary needs due to disability. The council should include any reasonable additional costs directly related to a person’s disability.

What happened

12. The Council completed a financial assessment of Ms X. I note this does not record any DRE and says Ms X must contribute £66.60 per week towards her care charges.
13. Ms Y appealed the Council’s decision in February 2019. She wanted the Council to recognise her costs on massage therapy, clothing and vitamins as DRE.
14. In April 2019 Ms X’s advocate contacted the Council seeking a response to the appeal (review form) submitted in February 2019.
15. The Council responded to say this would be looked at during the upcoming review. (I have taken this to refer to a care plan review undertaken by the Learning Disability Service (“LDS”).)
16. Ms X’s advocate said they expected a response to the appeal within three weeks yet it had now been eight or nine weeks. The Council then said the review would be in or around August 2019.
17. The Council’s case notes record a decision of the Care Charges Panel in May 2019. This refers to Ms X’s request for massage therapy, clothing and vitamins. It says the Panel will make a final decision after the review by the LDS.
18. In June 2019 the Care Charges Panel was still awaiting an update and advice from the review regarding “the request for services not clearly recognised as social care i.e. massage therapy.”
19. The Council reviewed Ms X’s care plan in June 2019. I note the following relevant points:
• Ms X reported difficulty paying her care charge contributions because she self funds massage therapy. Massages cost between £90 - £120 per session and she is currently having 2-3 massage sessions a week. Her GP reported that the massages are "essential to provide pain relief and enable her to function".
• Ms X is appealing the care charge contributions with the hope that she will be exempted from paying care charges, which will enable her to continue funding massage therapy.
• Ms X seeks a further 2 support hours at night and a review of her care charge contributions so that she has sufficient money to fund massage therapy.
• The social worker will consider increasing support by 2 hours. She notes Ms X is appealing the care charges and, she suggests Ms X explore other massage services as suggested by her GP.
20. The case notes for 21 August 2019 report the findings of the Care Charges Panel. In summary this says:
• Ms X is requesting 2 hours’ additional support at night.
• They need to look at how she is using her current hours.
• They need evidence from a physiotherapist about the nature of her spasms and the support she needs.
21. In September 2019 the Council updated Ms X in relation to her appeal. The Council reported the ASC manager and Chair of the Care Charges Panel said massage therapy was a health benefit and she should revisit this with her GP because it was not something social care would fund or provide. However, the Council suggested two massage therapy providers that may be cheaper for her to use. Care charges would continue to apply. Further, the Council did not agree her request for an additional 2 hours’ support as she was not currently using the direct payments in full and could use the surplus to fund the extra support.
22. In October 2019 Ms Y chased the Council for a response to a complaint made by Ms X’s carer months ago.
23. The Council explained it received a complaint in May 2019 but then did not receive any signed consent forms back for it to proceed.
24. In November 2019 Ms Y confirmed the current complaint; that the Council had refused Ms X’s appeal and not taken account of her health needs. They had been bounced between the Care Charges team and LDS. The latter was meant to find cheaper massage providers but Ms X was already using the ones suggested. Ms X is receiving large bills causing distress to her and her Gran. The Council was told to contact Ms Y regarding payment but continued to contact Ms X’s Gran causing distress.
25. The Council confirmed the complaint with Ms Y. However, I note it did not include concerns about contacting Ms X’s Gran.
26. The Council provided its complaint response on 23 December. It explained the items Ms X lists as DRE are in fact health related costs which are not discountable. However, after further consideration it would review her support plan with a view to including a limited number of massages as part of her package of care. It would also like to refer Ms X for a physiotherapy assessment and she should contact it if she agrees to this. The Council noted it recommended two other massage providers, not realising Ms X already used these.
27. I note the Council did not comment on Ms X being bounced between teams or contacting her Gran.
28. Ms Y complained to the Ombudsman about the Council’s decision on care charges, passing them between teams and contacting Ms X’s Gran. She explained Ms X pays for massages to help with her spasms which are extremely painful and debilitating. She frequently pays someone to come to her home and give her a massage late at night as without this she cannot sleep. An appeal was submitted however the Care Charges team have stated that this is a health need so they cannot not reduce the charges. When trying to resolve this matter, Ms X’s carer and herself have been constantly passed around between the LDS and the Care Charges team. Both say it is not their responsibility but the other team.
29. When I spoke to Ms Y she said Ms X did not want a referral to a physiotherapist as she did not think it would help. They had questioned the need for another care plan review given the previous one was in June 2019. They did not receive a response and a review had not yet taken place.
30. In response to enquiries the Council explained:
• The Quality Assurance Panel decision on 21 August 2019 was with regard to a request for funding for an additional 2 hours’ support per week.
• It confirmed Ms X was not at present using all 30.5 hours within her support plan and she had sufficient surplus hours which she could use for support at night.
• The question of care charges and what income and expenditure can be disregarded when assessing the level of charges is a matter for the Care Charges team and the Care Charges Panel.
• The question of whether massage could be included as part of Ms X’s social care support plan is a matter for the LDS.
• It recognises communication with different departments which have different areas of responsibility can be confusing.
• The case records show that a community nurse from the LDS contacted Ms X’s Gran on 3 December 2019 and again on 6 December 2019. The nurse was completing a ‘joint funding assessment’ which the service completes for all its service users. Her contact was not about payments but about Ms X’s health needs.

Findings

31. Ms X appealed the financial assessment because she wanted massage therapy, clothing and vitamins considered as DRE, to reduce her care charge contributions. This would be a matter for the Care Charges team or Care Charges panel to decide. However, the documents show there has not been clear communication with Ms X about who makes this decision. It appears the Care Charges panel were waiting for the care plan review by the LDS, but at the care plan review the social worker only noted Ms X was appealing the charges. It then appears the Care Charges panel did confirm Ms X could not claim DRE. I consider the Council could have provided this information much sooner in response to the appeal. I find the poor communication and delay in deciding on Ms X’s appeal amounts to fault. This caused Ms X avoidable distress and uncertainty.
32. I note Ms X takes vitamins and probiotics to maintain good health. She also has massages to relieve pain caused by muscle spasms. I note these do not fall under the list of DRE set out in statutory guidance. The Council should include any reasonable additional costs directly related to a person’s disability, however it considers these relate to health needs rather than social care needs. It is correct that the Council should not meet any health needs and therefore its decision appears to be in line with the law. I find no fault in this regard.
33. Insofar as Ms X may have sought massage therapy funding under her care plan, the care plan shows the social worker referred Ms X back to her GP. I find no fault in this decision as the care plan did not identify massage therapy as a social care need that the Council must meet.
34. The Council’s records show it did not contact Ms X’s Gran about her debts. I therefore find no fault in this regard.
35. I note the Council told Ms X it would review her support plan again with a view to including some massage therapy within the package of care. As this review has not yet taken place I cannot assess whether there is any further fault or injustice in this regard.

Agreed action

36. To remedy the injustice set out above I recommend the Council take the following actions within one month of the date of my decision:
• Provide a written apology to Ms X for its poor communication and delay in considering her appeal;
• Pay Ms X £100 for distress and uncertainty;
• Identify the reason for the Council’s delay in considering Ms X’s appeal against the financial assessment and take steps to prevent recurrence.
37. The Council has accepted my recommendations.

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Final decision

38. I find no fault in the Council’s decision on Ms X’s care charges but find fault in its handling of the dispute. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman