Summary: there is no evidence of fault in the way the Council assessed Ms X’s financial contribution towards the cost of her care.

The complaint

1. Mr A (as I shall call the complainant) says the Council has failed to explain how his disabled sister can afford her personal expenditure, in line with the aims of the Care Act, after paying the contribution towards the cost of her care.

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The Ombudsman’s role and powers

2. 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)
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 the information provided by Mr A and the Council. Both Mr A and the Council had an opportunity to comment on an earlier draft of this statement and I considered their comments 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. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. 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)
7. People receiving local authority-arranged care and support other than in a care home need to retain a certain level of income to cover their living costs. Under the Care Act 2014, charges must not reduce people’s income below a certain amount but local authorities can allow people to keep more of their income if they wish. This is a weekly amount and is known as the MIG.
8. The Care and Support Statutory Guidance says, (chapter 49): “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.”
9. The guidance also says (chapter 8.46), “The government considers that it is inconsistent with promoting independent living to assume, without further consideration, that all of a person’s income above the minimum income guarantee (MIG) is available to be taken in charges.”

What happened

10. Ms X, who is disabled, lives in a communal property with three other disabled adults. 24-hour care is provided for them by the Council.
11. In 202 Ms X was assessed as being able to contribute £95.61 towards the cost of her care. Mr A wrote to the Council to complain about the amount and ask how it was calculated.
12. On 20 July the Council replied to Mr A. It said £95.61 was the amount left after it had deducted the minimum income guarantee amount plus a 10% local discretionary allowance from Ms X’s income, which was made up of her Employment Support Allowance, the care component of her Personal Independence Payment, and a standard amount for Disability Related Expenditure (DRE). It said if Ms X had additional DREs then the Council would take them into account if Mr A notified it.
13. Mr A complained to the Council that the amount left for his sister’s personal use did not enable her to socialise and did not promote independence as the Care Act envisaged. He pointed out that care home residents were left with a Personal Expenses Allowance (PEA) of £24.91 a week which was a protected amount and asked that the same principle be applied to his sister.
14. The Council responded again. It said the minimum income guarantee amount was set nationally. It said the financial assessment had been conducted in line with national guidelines and Council policy. It reiterated the possibility there might be additional disability-related expenses which Ms X had which might lower her contribution. It explained that the PEA was the only allowance available to care home residents but by contrast his sister was left with an amount of £253.39 a week to meet the additional expenses she incurred as she did not live in residential care.
15. Mr A complained to the Council again in October. He asked about the 10% discretionary allowance the Council made and how it was decided.
16. The Council replied in November 2020. It said the Council operated a more generous policy in this respect than other local authorities. It said “the additional disregard currently set at 10% is decided locally. It is given to every customer who is financially assessed and in receipt of Non-Residential Care. The disregard has been in place since 2005 when the charging rules changed allowing Local Authorities to charge for care provided by the hour.” It added that the disregard was reviewed annually and was currently the subject of a proposed removal given that it was above the statutory amount set. Once again the Council reminded Mr A he could apply for consideration of more DREs if he considered Ms X incurred them.
17. Mr A complained to the Ombudsman. He said the Council had not responded properly to his questions about how the amount his sister was left to use for personal reasons – which he calculated at about £10 a week - met the Council’s policy aims “to promote well-being, social inclusion, and support personalisation, independence and choice”.
18. The Council asserts out that the way the charges have been calculated is lawful and adheres to the regulations and guidance. It adds “Not only does Liverpool City Council ensure that (Ms X} is left with an amount each week that she is entitled to in accordance with the law, she has access to a process that provides an opportunity for her to potentially benefit from further financial disregards dependant on her own personal circumstances.”
19. Mr A says the Council has not protected his sister’s income, but has assumed that all her income above the MIG was available to pay her contribution towards the cost of her care. He says “The offer to apply for more disability-related expenses will not provide (Ms X) with any money for personal expenses. If the expenditure is legitimately incurred for disability-related expenses, then it will be claimed as such and this avenue should not be used as a ‘device’ for reducing her charge.”

Analysis

20. The Council has complied with the national regulations on charging and has also applied its own more generous allowance. There is no evidence of fault there.
21. The Council has invited Mr A to provide evidence of additional disability-related expenses, if Ms X incurs them, which would reduce her contribution further.
22. The analogy with care home residents does not apply as the financial assessment is undertaken on a different basis.

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Final decision

23. I have completed this investigation as there is no evidence of fault on the part of the Council in the way it has calculated Ms X’s contribution to the cost of her care.

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Investigator's decision on behalf of the Ombudsman