Summary: Mr P complains the Council has taken far too long to increase his personal expenses allowance, causing unnecessary distress. The Council was at fault for giving Mr P confusing information, after the appeal about charges. Its offer to apologise was a suitable remedy for consequential distress. The Council’s offer to waive all the charges up to 19 December 2020 is enough to remedy any injustice caused to Mr P by the delay in completing the appeal.

The complaint

1. The complainant, whom I shall refer to as Mr P, complains the Council has taken far too long to increase his personal expenses allowance, causing unnecessary distress.

Back to top

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, sections 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Mr P;
• discussed the complaint with Mr P;
• considered the comments and documents the Council has provided; and
• shared a draft of this statement with Mr P and the Council, and invited comments for me to consider before making my final decision.

Back to top

What I found

5. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. 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 and Care and Support Statutory Guidance)
6. Annex C of the Care and Support Statutory Guidance says:
• “The local authority must leave the person with a minimum amount of income. This is known as the Personal Expenses Allowance (PEA) and the amount is set out in regulations and updates sent via a local authority circular. Anything above this may be taken into account in determining charges.”
7. It also says there may be some circumstances where it would not be appropriate for the local authority to leave a person with the PEA after charges. It provides some examples but none of them reflect Mr P’s circumstances.

What happened

8. Mr P has lived in a care home since 2012, at first funding his placement himself. He approached the Council for help funding his placement in February 2018 because his capital had fallen below £23,250 (the threshold for Council funding). There followed a long dispute over whether Mr P needed to live in a care home which was finally resolved in May 2019, when the Council agreed he did. Because of a previous complaint to the Ombudsman (18010793), the Council agreed to backdate its funding for Mr P’s placement to the date his capital fell below £23,250 (31 July 2017). Following a further complaint (19012952), the Council accepted this decision prevented Mr P from managing his spending within his personal expenses allowance (PEA), which at the time was £59.67 a week. It therefore paid Mr P £20,410 in January 2020.
9. We advised Mr P that if he thought the PEA of £59.67 a week was too low, he needed to complain to the Council about it before we could investigate his complaint.
10. Mr P complained to the Council about its decision on his PEA.
11. On 7 April the Council’s appeal panel decided not to increase Mr P’s PEA, which remained £59.67 a week:
• £20 for activities to support his mental health and emotional wellbeing;
• £14.77 for life insurance; and
• £24.90 which is the standard minimum PEA.
12. The appeal panel rejected Mr P’s requests for:
• £70 a week to maintain a car, as he could use other forms of transport;
• £20 a week for meals out, as it had allowed £20 a week for social activities;
• £10 a week for gifting to family;
• £16 a week for newspapers, as he could use the standard minimum PEA for this;
• £24 a calendar month to see a dental hygienist, as it had no documentary evidence for this;
• £27 every six weeks for a chiropractor, as it had no documentary evidence for this;
• £1,800 to pay off debts, as debts were not allowed and he could agree a payment plan for his debts.
13. Mr P appealed the Council’s decision.
14. There was some delay in arranging a meeting to discuss Mr P’s appeal because he wanted a face-to-face meeting. Initially COVID-19 prevented a face-to-face meeting. A meeting arranged for August was postponed and Mr P could not attend the date offered in September.
15. The appeal meeting finally went ahead on 28 October. This was a virtual meeting, as some Council officers continued to work from home. Mr P made his case for an increased PEA.
16. The Council telephoned Mr P on 4 November to tell him the outcome of his appeal. It wrote to him on 3 December to confirm the outcome. It agreed to increase his weekly PEA by:
• £70 to maintain a car;
• £16 for newspapers;
• £6 for dental care;
• £12 for personal hygiene;
• £5 for a mobile phone contract;
• £5 for gym membership;
• £15 for trips outside Southampton;
17. This increased Mr P’s PEA to £188.67 a week. The Council decided not to allow:
• £20 for meals out, but noted he could use the allowance for activities to support his mental health and emotional wellbeing for this purpose;
• £10 for gifting, as the minimum PEA (£24.90) could be used for this purpose;
• £27 every six weeks for a chiropractor, as Mr P had withdrawn this request;
• £1,800 to pay off debt, as this was not something it could allow within a financial assessment.
18. On 19 March 2021 the Council agreed to increase Mr P’s weekly PEA by £5.00 for podiatry/chiropody, taking the total to £193.67. However, it turned down his request to increase it by £5.00 to provide for family gifts. It said the standard PEA could be used to make small gifts. Mr P is now content with his PEA.
19. The Council wrote to Mr P on 24 March saying the decision to increase his PEA to £193.67 a week meant his weekly contribution towards the cost of his care was £215.84 a week from 19 March 2021.
20. Mr P experienced a decline in his mental health which resulted in him being prescribed additional medication in April. He put this down to his dwindling finances and anxiety over funding for his accommodation.
21. The Council wrote to Mr P on 21 May to say his weekly contribution towards the cost of his care from 31 May was £222.18.
22. The Council wrote to Mr P on 28 May confirming it had backdated the increased PEA agreed in December 2020 to 1 July 2019. It said his weekly contribution from 1 July 2021 was £215.84.
23. When the Council wrote to Mr P on 18 June it said:
• it apologised for the delay in concluding the outstanding issues from his appeal
• it would remove £16,588.85 of charges for the period 1 July 2019 to 19 December 2020;
• this left £5,858.51 for him to pay for the period 20 December 2020 to 27 June 2021;
• his assessed contribution was £215.84 a week;
• it would implement the changes when he signed an agreement agreeing to pay £5,858.51
24. The agreement the Council sent Mr P to sign is dated 24 June. It invited him to confirm:
• he had received its letter of 18 June 2021;
• it had told him the balance on his account of £16,588.85 for 1 July 2019 to 19 December 2020 would be removed;
• he was responsible for paying £5,858.51 for the period 20 December 2020 to 27 June 2021;
• he agreed to pay £215.84 a week from 28 June 2021.
25. Mr P refused to sign the agreement. He has not paid his assessed charge. He says he should not have to pay anything until his complaint is resolved. He will not accept an apology from the Council
26. On 6 July the Council sent Mr P an invoice based on a weekly charge of £222.18.
27. The Council wrote to Mr P on 21 July confirming:
• it would remove £16,588.85 in charges from 1 July 2019 to 19 December 2020, to remedy the injustice arsing from his complaint about its handling of his financial assessment;
• his current weekly charge was £215.84 a week.
28. When responding to a draft decision on this complaint on 28 July, the Council confirmed Mr P’s ongoing charge was £215.84 a week. However, the Council now says this was a mistake and that the letter it sent to Mr P on 21 May (see paragraph 21 above) was correct. It says this reflected the annual uprating of charges (to reflect changes in pensions and benefit payments).
29. The Council has confirmed that it is open to agreeing a repayment plan with Mr P for the outstanding debt.

Is there evidence of fault by the Council which caused injustice?

30. The Council is entitled to charge Mr P for his care. His circumstances are not like those of most people living in residential care. Nevertheless, it is inevitable that the Council’s charges will have an impact on his ability to spend his money on what he would like to spend it on.
31. It has taken a long time to agree the increase in Mr P’s PEA, which reduced his weekly charge to £215.84 (£222.18 from 31 May). However, the matter was substantially resolved in December 2020. The Council’s agreement to cancel charges to that point remedies injustice caused by this fault.
32. Mr P asked the Council to increase his PEA to allow for chiropody, which it agreed to do in March 2021. It appears there had been a misunderstanding over whether he was seeing a chiropractor. It is not clear why that was not resolved at the meeting in October, but I cannot say that was due to fault by the Council. I cannot find fault with the Council for not allowing additional PEA so Mr P can make gifts to family. The Council is entitled to take the view that such expenditure should come from the standard PEA of £24.90 a week. The Council is also entitled to take the view that paying off his personal debts is Mr P’s responsibility, and not something it should do by increasing his PEA.
33. Since May 2021, the Council has provided confusing and conflicting information about the charges for Mr P’s care, which it has only just resolved. That is fault by the Council which has caused further avoidable distress to Mr P, for which an apology would be appropriate. But Mr P is not prepared to accept a further apology from the Council.
34. The question for me to consider is whether the Council needs to do more than waive the charges up to 19 December 2020. Given that the length of time taken to increase Mr P’s PEA was not entirely due to fault by the Council, but also due to problems arising from COVID-19 which meant the appeal hearing did not happen until October 2020, there are no grounds to ask the Council to waive more of the charges.

Back to top

Final decision

35. I have completed my investigation. There was fault by the Council that caused injustice to Mr X. I am satisfied the action the Council took to cancel charges and offered to take to apologise is sufficient to remedy his injustice. There are no grounds to ask the Council to waive more of Mr P’s charges.

Back to top

Investigator's decision on behalf of the Ombudsman