Summary: Mrs X complained the Council misled her and her son, Mr Y, about his contributions towards his non-residential care costs. There was fault in how the Council charged Mr Y without any notice in 2017. The Council has reduced Mr Y’s debt by the overcharged contributions and has agreed to make a financial payment to Mrs X for the time and trouble caused by having to make a complaint. This is a suitable remedy, so we completed our investigation.

The complaint

1. Mrs X complained the Council misled her and her son, Mr Y, about his contributions towards his non-residential care costs. She says the Council:
1. told her in 2014 the maximum contributions Mr Y would need to make would be significantly lower than they were before he started attending day care;
2. failed to tell her the true cost before charging Mr Y for his contribution in 2017;
3. failed to provide her with accurate information and misled her about which of Mr Y’s expenses could be allowed for when calculating his contribution;
4. charged Mr Y too much for his contribution to his care; and
5. persuaded her to continue sending Mr Y to the day centre despite her concerns about the cost.
2. As a result, Mrs X said Mr Y now owes a significant sum to the Council and it has threatened court action, which has caused Mrs X significant stress and worry. She wanted the Council to cancel the debt or reduce it to the charges she says it told her the maximum costs would be.

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The Ombudsman’s role and powers

3. 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)
4. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for them. If the person has died or cannot authorise someone to act, we may investigate a complaint from a personal representative or from someone we consider suitable to represent the person affected. (Local Government Act 1974, section 26A(2), as amended)
5. 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

8. I considered the information Mrs X provided and discussed the complaint with her.
9. I considered the Council’s comments on the complaint and the supporting information it provided.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments I received before making a final decision.

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What I found

Charging for social care services

11. Councils can charge for care and support services they provide or arrange. Charges may only cover the cost councils incur. (Care Act 2014, section 14)
12. Councils must assess a person’s finances to decide what contribution they should make towards their care. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25%. Councils can take a person’s capital and savings into account subject to certain conditions. If a person incurs expenses directly related to any disability they have, councils should take that spending into account when assessing their finances. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)

Disability-related expenditure

13. If a council takes a disability benefit into account when calculating how much a person should contribute to the cost of their care, it must also assess disability-related expenditure (DRE) in the financial assessment. DRE are costs that arise from a disability or long-term health condition. The statutory guidance says councils must leave people with enough money to pay for necessary DRE to meet any needs not met by the council. Councils should be flexible in the costs they accept and should always consider individual circumstances.
14. The Council’s DRE policy allows a set amount for DRE, depending on the disability benefits a person receives. The Council uses the set amount, or the person’s actual costs, whichever is higher.
15. When considering the actual costs, the Council’s policy says it allows costs which:
• are needed to meet a person’s specific need, due to a condition or disability as identified in the person’s social care assessment;
• are reasonable and can be verified (for example, through receipts); and
• are not more than the cost of a reasonable alternative.

Background

16. Mrs X’s son, Mr Y, has a diagnosis of Epilepsy, Autism and a Learning Disability. He lives with Mrs X, who manages his finances, and Mr X, who is his main carer.
17. Before he turned 19, the Council’s children’s disability service met Mr Y’s care needs. The Council then assessed his care and support needs as an adult.
18. The Council decided, in early 2014, that Mr Y would benefit from attending a day centre five days a week. It assessed his finances and decided, based on his income at the time, he would not need to contribute to his care costs. However, the Council advised Mrs X to help Mr Y claim Employment and Support Allowance (ESA) to increase his income. It estimated that if Mr Y received ESA, he would need to pay about £7 a week towards his care.
19. Mr X started attending the day centre in August 2014.

What happened

20. In April 2016, following the introduction of the Care Act in 2015, the Council reassessed Mr Y’s contributions to his care costs. It based this assessment on information it already had and decided Mr Y did not need to contribute to his care.
21. In January 2017, the Council discovered Mr Y had been receiving ESA since August 2014. It reassessed his contributions to his care costs and decided Mr Y should pay £48.40 a week from late January 2017.
22. Mrs X asked the Council to reassess Mr Y’s contribution because she said his DRE was higher than the Council’s standard allowance.
23. In June 2017, the Council accepted some of the costs claimed by Mrs X and rejected the others. For the costs it rejected, the Council decided the costs were either not a direct result of Mr Y’s disability or there were cheaper alternatives available.
24. Mrs X appealed the Council’s assessment. The Council reviewed its assessment in September 2017 but decided Mr Y’s allowable DRE was less than the Council’s standard allowance, so his contribution remained unchanged.
25. Mrs X further appealed the Council’s decision. The Council reconsidered the assessment again in November 2017, but again decided Mr Y’s allowable DRE was less than the standard allowance.
26. Although Mrs X did not pay Mr Y’s contribution, the Council said this was not noticed because it had overpaid the costs of Mr Y’s day centre place, so his attendance was not affected.
27. When the Council became aware of the shortfall in Mr Y’s contribution in late 2018, it arranged a home visit to Mrs X. At that visit, in January 2019, the Council noted that Mrs X wanted to remove Mr Y from the day centre because it was not affordable. It said it offered Mrs X a hardship assessment, which it said she refused in favour of a further DRE assessment. She also agreed not to end the day centre placement until after that assessment. Mrs X at first agreed to provide the necessary evidence but did not provide this until early 2020.
28. In February 2020, the Council wrote to Mr Y saying it would take him to court if he did not pay his outstanding contributions of just under £7,000.
29. The Council agreed with Mrs X it would reassess Mr Y’s DRE following a review of his care needs in May 2020 and it would not take further action until it had done so. In early June, the Council rejected most of the DRE Mrs X claimed because the costs were either not a result of Mr Y’s disability, were general living costs or health needs.
30. Mrs X complained to the Ombudsman in November 2020 and the Council agreed not to take more action until the Ombudsman’s investigation was complete.

The Council’s response to my enquiries

31. In its response to my enquiries, the Council identified it had not followed its own policies when first charging Mr Y in January 2017. The Council said its policy when someone starts paying a contribution is to offer them a home visit to discuss the assessment and to give them three months’ notice of the contribution. The Council accepted it did not offer Mrs X a home visit and should only have asked Mr Y to start paying from 24 April 2017.
32. As a result, the Council identified it had overcharged Mr Y by just over £630, which it removed from the amount Mr Y owes. It also reduced Mr Y’s debt by a further £150 to recognise the time and trouble caused to Mrs X by her needing to complain.

My findings

33. I am satisfied that because of his disabilities, Mr Y cannot give consent for someone to bring a complaint on his behalf. I am also satisfied that Mrs X is a suitable person to complain on behalf of Mr Y.
34. We cannot normally investigate complaints if someone takes more than 12 months to complain to us about something the Council has done. However, we can investigate if we are satisfied there are good reasons someone could not have complained sooner.
35. Although Mrs X brought the complaint to the Ombudsman, she is complaining on behalf of her son, Mr Y. Given Mr Y’s disabilities, I am satisfied he could not have complained to the Ombudsman sooner and so I have decided to consider matters from 2014 onwards.

a) the Council’s estimate of Mr Y’s contribution in 2014

36. When the Council estimated Mr Y’s possible contribution, if he claimed ESA, it estimated his contribution based on the rules at the time. This included ignoring part of Mr Y’s disability benefits because the Council only provided care during the day. Based on these rules, the estimate was correct.
37. The rules for care charging changed in 2015. From then, the Council could take the whole amount of Mr Y’s disability benefit into account, which it did. The Council wrote to Mrs X in early 2016 to explain it would apply the new rules to Mr Y from April 2016. Although the estimate the Council provided in 2014 was lower than Mr Y’s contribution from 2017, this was because the rules had changed, rather than any error by the Council.

b) charging Mr Y without notice

38. The Council accepted it should have given Mr Y three months’ notice before asking him to pay his contribution. As a result, it accepted it overcharged Mr Y during that period.
39. The Council has reduced Mr Y’s debt by the amount it overcharged him. I am satisfied this is a suitable remedy for the injustice to Mr Y. However, the £150 for the time and trouble caused to Mrs X should be paid to her, not to Mr Y’s debt.

c) information about disability-related expenditure

40. Mrs X says the Council gave inconsistent information about disability-related expenditure. However, the evidence shows the Council sent Mrs X the same information about its DRE policy on several occasions between 2017 and 2020. This information set out the requirements for expenses to count as DRE and what evidence the Council needed.
41. Mrs X says she was confused by the Council’s explanations about what expenses could count as DRE. However, the evidence shows the Council applied its policy consistently and correctly to Mrs X’s claims for DRE and provided consistent explanations in its decision letters. Therefore, I am not satisfied the Council was responsible for Mrs X’s confusion about which of Mr Y’s expenses could count as DRE.

d) calculating Mr Y’s contribution

42. In each of the financial assessments the Council completed for Mr Y from 2017, it used Mr Y’s correct income and applied the correct allowances under the financial assessment rules and its DRE policy.
43. In each decision about Mr Y’s claimed DRE, the Council applied its DRE policy and the statutory guidance, and provided clear explanations why each expense was accepted or rejected.
44. Therefore, although the contributions calculated were higher than the estimate the Council gave in 2014, there was no fault in how it calculated Mr Y’s contributions to his care needs.

e) Mr Y’s continued attendance at the day centre

45. Mrs X raised concerns about the affordability of Mr Y attending the day centre in both early 2017 and in 2019. On both occasions the Council sent Mrs X information about how to claim DRE and, in 2019, arranged a home visit to discuss Mr Y’s needs. It offered Mrs X a hardship assessment, but said she refused this in favour of a new DRE assessment.
46. Although Mrs X agreed to a new DRE assessment, there is no evidence the Council persuaded her to keep sending Mr Y to the day centre against her wishes. In any case, we would expect the Council to promote Mr Y’s wishes and best interests, since these are the most important consideration. This would include encouraging his attendance at the day centre since this met the needs identified in his care and support plan.
47. Mrs X decided not to provide the information for the DRE assessment for almost 12 months so it is likely she could have decided to stop sending Mr Y if she had wished to. The Council reviewed Mr Y’s care needs in May 2020, and the day centre placement was still identified as the best way to meet Mr Y’s needs at that time.

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Agreed action

48. Within one month of my final decision, the Council will:
• apologise to Mrs X for the time and trouble caused to her by having to pursue her complaint to the Council and the Ombudsman; and
• pay the £150 it has offered for this time and trouble to her directly.

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Final decision

49. I have completed my investigation and uphold part b) of the complaint. There was fault in how the Council charged Mr Y without any notice in 2017. The Council has reduced Mr Y’s debt by the overcharged contributions and agreed to make a financial payment to Mrs X for the time and trouble caused by having to make a complaint. This is a suitable remedy.

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Investigator's decision on behalf of the Ombudsman