The Ombudsman's final decision:
Summary: There is no evidence of fault in the way the Council has calculated Ms X’s financial assessment. The Council apologised for an initial error in its communications, but the error had no impact on the assessment itself.
- Ms X (as I shall call the complainant) complains the Council has incorrectly calculated her contribution towards the cost of her care by including the full amount of her Personal Independence Payment (PIP). As a result she has found it difficult to meet the new charges.
The Ombudsman’s role and powers
- We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused an injustice we may suggest a remedy. (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
- 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)
How I considered this complaint
- I considered all the information provided by Ms X and the Council. I spoke to Ms X. Both Ms X and the Council had an opportunity to comment on an earlier draft of this statement before I reached a final decision.
What I found
Relevant law and guidance
- 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)
- A Council 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 a certain level. The Council can take a person’s income, 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)
- When councils calculate how much people should pay towards their adult social care costs, they may take most of the benefits people receive into account. However, Councils must automatically disregard some income, including the mobility component of PIP. There is no requirement automatically to disregard the rest of PIP. However, statutory guidance, which councils must have regard to, says councils:
‘…need to ensure that in addition to the minimum guaranteed income or personal expenses allowance… people retain enough of their benefits to pay for things to meet those needs not being met by the local authority.’ (Care and Support Statutory Guidance, Annex C, paragraphs 14 and 15)
- The Council should follow the above points when assessing how much Ms X should contribute.
- The statutory guidance also says:
‘Any income from the following benefits must be taken into account when considering what a person can afford to pay from their income towards the cost of their care and support in a care home: …
(k) Personal Independence Payment (Daily Living component)’
(Care and Support Statutory Guidance, Annex C, paragraph 16)
- However, as that only applies to care and support in a care home, it was not relevant to Ms X’s financial assessment as she does not live in a care home.
- The Council arranges for Ms X to receive some social care services in her own home (domiciliary care). The Council arranges care for Ms X during the day. Ms X reports she arranges and pays herself for the care she says she needs at night, as the Council does not provide a night service.
- The Council previously calculated Ms X should pay around £58 per week towards the cost of her care. When Ms X changed from receiving Disability Living Allowance (DLA) to PIP, the Council reassessed how much she should contribute. It decided she should contribute £86.95 per week. Ms X argues that is an excessive increase that does not leave her with enough income to pay for other things, including her night-time care.
- In January 2020 Ms X wrote to the Council to complain about the increase and ask the Council to review its calculation. She said the Council had included the enhanced rate of PIP in her assessment and should not have done so as the Council did not provide a night care service to her.
- The Council responded on 4 February 2020. It did not uphold her appeal. In its response it quoted paragraph 16 of the guidance (as above, at paragraph 9) but did not include the section referring to care in care homes.
- The Council says this was an error which did not materially affect the outcome of Ms X’s assessment. It says “The letter correctly refers to paragraphs 14 and 15 of Annex C, which do apply to domiciliary care, and explain that the PIP daily living component is not disregarded in the financial assessment. By way of further context, this is supported by paragraph 29 which confirms, by contrast, that PIP mobility is fully disregarded.”
- The Council says Ms X has not been assessed by the Council as requiring care and support during the night, and officers have not been asked by Ms X or her representative to consider privately funded care and support of this nature as disability related expenditure.
- The Council has provided evidence of its correspondence with Ms X about the DREs she has requested which it has considered and approved. It has explained the items which it does not approve as they are considered normal household items (such as purchase of beds, gas and electricity costs which are covered by the Minimum Income Guarantee, routine dental appointments and so on).
- The Council assessed Ms X’s finances in accordance with the statutory guidance. There is no evidence of fault there.
- The Council acknowledges there was an error in one of its letters, but that did not affect the outcome of the assessment.
- The Council has considered Ms X’s DREs appropriately.
- I have completed this investigation as there is no fault in the way the Council assessed Ms X’s finances.
Investigator's decision on behalf of the Ombudsman