Summary: A legal representative complains for his client Mr B about the charges he is paying for his care and support, which he says are too high, leaving him with income below the level of the Minimum Income Guarantee. The Ombudsman finds there was fault by the Council in its failure to update its charging policy to reflect the government guidance it was applying, but this did not lead to injustice for Mr B.

The complaint

1. A legal representative, who I shall call Mr C, complains for his client Mr B about the charges he is paying for his care and support, which he says are too high, leaving him with income below the level of the Minimum Income Guarantee (MIG) and preventing him from leading a life of wellbeing and inclusion.

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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. 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 considered all the information provided by Mr C about this complaint. I made written enquiries of the Council and took account of the information it provided in response.
5. Mr C and the Council were provided with a draft of this decision and given the opportunity to comment.

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What I found

Legal and administrative information

6. Local authorities have statutory duties and powers for providing support to people who meet local eligibility criteria, and for charging the person for services. The Care Act 2014 sets out a clear approach to charging and financial assessment. Section 14 of the Act explains the power of the Local Authority to charge for the cost of care. Section 17 explains the mandatory duty to undertake an Assessment of financial resources.
7. The associated regulations are the Care and Support (Charging and Assessment of Resources) Regulations 2014. Where a local authority chooses to charge, regulations determine the maximum amount a local authority can charge a person.
8. There is also statutory guidance to support the legislation: The Care and Support statutory guidance. This sets out that local authorities should develop and maintain a policy setting out how they will charge people in settings other than care homes. In deciding what it is reasonable to charge, local authorities must ensure that they do not charge more than is permitted under the regulations. The guidance sets out that 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. The guidance states that 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 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 these disability-related costs.
9. The government considers that it is inconsistent with promoting independent living to assume, without further consideration, that all a person’s income above the minimum income guarantee (MIG) is available to be taken in charges. Local authorities should therefore consider whether it is appropriate to set a maximum percentage of disposable income (over and above the guaranteed minimum income) which may be taken into account in charges.

What happened in this case

10. Mr B receives services from a limited company wholly owned by the Council, which commissions its services for care in various settings and Shared Lives (accommodation in which vulnerable people live with and share the lives of a host family). Mr B lives in a Shared Lives setting.
11. The Council carried out financial assessments to establish what contribution Mr B should make to his Shared Lives support and to his attendance at day services twice a week. Prior to August 2018 Mr B was assessed as not being required to contribute to the cost of his care, because his net income after disregards was less than the MIG.
12. In August 2018, the Council carried out a reassessment which resulted in a client contribution calculated at £80.60 a week. To reach this sum, the Council had noted Mr B’s benefit income of £277.05 (not including the mobility component of his Personal Independence payment), against which it had made an allowance of £45 for disability related expenditure (DRE). Mr B’s MIG was calculated at £151.45, based on his age and benefits. The MIG is to cover daily living costs, aftercare and support charges. The Council deducted the DRE (£45) and the MIG (£151.45) from the income sum (£277.05), to reach the client contribution sum of £80.60 a week. The client contribution sum increased to £85.50 a week in April 2019 due to the annual uplift in benefit rates.
13. Mr C considers the Council’s calculation to be incorrect and he has set out what he considered the calculation should be, resulting in a client contribution sum of £13.10. However, in his calculation to arrive at this sum Mr C has deducted sums for rent (£60) and utilities (£7.50), a total of £67.50. The Council has confirmed that Mr B receives Housing Benefit which covers the full cost of his rent of £60 per week so Mr B does not incur any expense for this. Regarding the utilities costs of £7.50 a week, the Council’s position is that this is a general living cost and should therefore be taken out of his MIG, since that is intended to cover such costs. Therefore, it does not show separately in the financial assessment calculation. I find no fault with this.
14. The Council provided me with a copy of its charging policy. The formula set out in that policy refers to a calculation which adds a 25% buffer to the MIG figure. If the Council applied that policy, Mr B’s assessed contribution would be less.
15. Guidance in place prior to the introduction of the Care Act 2014 referred to a 25% buffer, but since the Care Act came into force the government has issued a circular each year which includes the calculation to be used for the MIG: in effect, these include what was previously referred to as the 25% buffer. While councils do have discretion to be more generous in their policy than the minimum set by government, the Council has confirmed it is following the government guidance as set out in the annual circular.
16. The failure to update the charging policy appropriately was fault. However, the appropriate government guidance has been applied; neither Mr B nor his representative were misled by the outdated policy; and, crucially, had the failure to update the policy not occurred, Mr B would be in the same position he is now in. He has not therefore sustained an injustice because of the identified fault in this case.
17. The Council has acknowledged that its policy needs to be updated and has confirmed it has withdrawn the policy from the public domain while this is completed. It has updated its website with a factsheet about how charges for care at home are calculated.

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Final decision

18. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman