Summary: the Council was not at fault in the way it completed its calculation of Mrs X’s contribution. The Council failed to carry out a review for several years but cancelled the backdated charges so Mrs X did not suffer injustice in consequence.

The complaint

1. Mrs X (as I shall call the complainant) complains about the way the Council has conducted its financial assessment. She says the assessed contribution is unfair and unaffordable.

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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 the Council and Mrs X. I spoke to Mrs X. Both Mrs X and the Council commented on an earlier draft of this statement, and I considered their comments and issued a revised draft decision. They had a further opportunity to comment before I reached a final decision.

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What I found

Relevant law and guidance

5. 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)
6. Where the council has decided to charge, it must carry out a financial assessment of what a person can afford to pay. It has no power to assess couples according to their joint resources: each person must be treated individually.
7. Councils 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 the Minimum Income Guarantee (para 8 below). 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 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)
8. Annex C of the Care and Support Statutory Guidance (CSSG) says any income from Council Tax Reduction Schemes must be fully disregarded (29(d))
9. Annex C paragraph 49 of the CSSG says ‘The purpose of the minimum income guarantee is to promote independence and social inclusion and ensure that they have sufficient funds to meet basic needs such as purchasing food, utility costs or insurance. This must be after any housing costs such as rent and council tax net of any benefits provided to support these costs - and after any disability related expenditure".

What happened

10. Mrs X is an adult with a progressive disease, who received support from the Council to help with her care.
11. In May 2020 the Council wrote to Mrs X with a reassessment of her financial contribution towards the cost of her care. It backdated some charges to September 2018. It assessed her new contribution from April 2020 as £61.46 a month.
12. Mrs X appealed against the Council’s decision. She also cancelled her care as she said she could not afford the contribution. Mr X (who also suffered some ill health) provided her care instead. The Council says Mrs X’s care package was suspended on 26 Mar 2020, as she was at high risk to Covid19 and self- isolating. This was before the notification of the increase in care charges was issued. It says “on 29 May 2020 (Mrs X) called the social care duty team to cancel care due to receiving the letter about backdated charges and not being able to afford the charges. The case note states (Mrs X) said she has been without care during the lockdown period and feels that between her and her husband they will manage without support”. She was informed that if she feels she needs to reinstate the care package to call for a re-assessment.”
13. The Council responded to her appeal in July 2020. It said it had considered her concerns about the way it had backdated charges to September 2018. It acknowledged there were missed opportunities to inform her of increased contributions. It agreed to waive the charges up to 8 June 2020.
14. The Council said it did not allow her appeal on the grounds of financial hardship. It assessed her total excess income at £339.09 a month and said the 4-weekly charge of £245.84 was therefore affordable. It said she was entitled to a second appeal if she disagreed.
15. Mrs X appealed again. She said out of the £339 she had to pay for her care, a cleaner, window cleaning, birthdays and Christmas presents as well as some credit card repayments. She said it was not possible to afford her assessed care contributions.
16. The Council did not allow the appeal. It said it could not take into account her expenditure on credit card repayments although it gave advice about a money advice service.
17. Mrs X complained to the Ombudsman.
18. The Council has provided details of the way it has calculated Mrs X’s financial contribution towards the cost of her care. Mrs X receives £13.47 a week in Council Tax Reduction. Mr and Mrs X are jointly liable for Council Tax of £32.69 a week (of which 50% is £16.34).
19. The Council’s calculation sheet records an expense of £2.88 against Council Tax. The Council says that “As (Mrs X) is part of a couple we have to calculate her share of any household expenses that are taken into account in the financial assessment. According to our records (Mrs X) is jointly liable for £32.69 per week council tax and she received £26.93 per week council tax reduction based on joint income at the time when the financial assessment was carried out. Therefore we have calculated her 50% share of council tax payments to be allowed as a household expense as follows:-

£32.69 - £26.93 = £5.76 x 50 % = £2.88 per week”

20. The Council says its calculations are therefore in accordance with the statutory guidance.
21. The Council points to the section of the CSSG which says a local authority should also consider the implications for the cared-for person’s partner. It says ‘By requesting details of household income and expenditure as supporting evidence for the appeal, this enables the council to see the financial impact of social care charges on the couple, and identify any exceptional circumstances that may affect ability to pay. In the stage 1 appeal the decision maker has made reference to the joint income and outgoings to substantiate that there is no evidence of financial hardship for the cared-for or the cared-for’s partner after applying social care charges based on (Mrs X’s) individual financial assessment.’
22. The Council says it accepts the reference to joint income and expenses ‘could lead the reader to the conclusion that the financial assessment had been conducted based on the income and expenses of the couple, which is not the case.’
23. My earlier draft decision queried the Council’s calculations on the basis that its deduction of the difference between the Council Tax payments and the Council Tax Reduction had the effect of not disregarding the Council Tax Reduction, and so had an impact on the assessed contribution.
24. The Council explains “council tax reduction has not been included as an income source in the calculation…. The statutory guidance refers to disregarding any CTR schemes that involves payment to a person. The CTR that (Mrs X) receives is deducted from the council tax liability before council tax charges apply. (Mrs X) doesn’t receive this as a payment.”
25. The Council then refers to (Annex C p49) “This (calculation of expenses) must be after any housing costs such as rent and council tax net of any benefits provided to support these costs – and after any disability related expenditure.” It shows that it has allowed a disability-related expense of £2.86 a week for telecare and Mrs X’s share (£2.88) of the Council Tax payment left after council tax reduction was applied (a total of £5.74).
26. The Council shows that the minimum income guarantee amount for Mrs X is £114.70.
27. The Council has set out its calculations to show that the weekly income for Mrs X is £181.90. After it has deducted the minimum income guarantee amount of £114.70 and the expenses of £5.74, the amount remaining as the maximum charge is £61.46.
28. The Council also wrote to Mrs X in October 2020 and advised her to contact social care to see what other types of support were available to her at no cost, and to explore how often she needed the type of support provided to her before, as this could cost less than the maximum charge.

Analysis

29. The Council has completed the assessment in line with the statutory guidance and so there is no evidence of fault which has caused injustice to Mrs X.
30. The Council has also offered to help Mrs X to identify what other support might be available at a lower or no cost.

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Final decision

31. I have completed this investigation on the basis there is no fault on the part of the Council.

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Investigator's decision on behalf of the Ombudsman