Summary: Mr and Mrs X complained about the way the Council calculated Mrs X’s financial contribution towards her care package. They say they cannot afford to pay it and this has caused them financial difficulties. The Council was not at fault.

The complaint

1. Mr and Mrs X complained the Council failed to notify them when it changed its charging policy and about the way the Council has calculated Mrs X’s assessed contribution towards her care package. They say they cannot afford to pay the assessed contribution, which fails to take into account their debts, and this is causing them financial difficulties and distress.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. 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)
4. I have exercised my discretion to consider what has happened since September 2019 when the Council reassessed Mrs X’s contribution to her care charges. I have not investigated what Mr and Mrs X were told about the Care Act 2014 and the changes this led to in the way the Council charged for services. This is because:
• this happened too long ago for me to establish exactly what Mr and Mrs X were told at the time;
• the Care Act came into force in April 2015. The Council was required to change its charging policy to comply with the changes to the law and statutory guidance; and
• the Council has provided a copy of a letter signed by Mrs X and a leaflet ‘Fairer Charging for Non-Residential Care’ it provided to her in 2015 which sets out how the Council will complete a financial assessment of resources to establish an individual’s contribution to their care costs so Mrs X has known about the Council charging for care since 2015.
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)

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How I considered this complaint

6. I have considered the information provided by Mr and Mrs X and I spoke to Mr X on the telephone. I have considered the Council’s response to my enquiries and the relevant law and guidance.
7. I gave Mr and Mrs X and the Council the opportunity to comment on a draft of this decision and considered any comments I received in reaching a final decision.

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What I found

Charging for adult social care

8. The Care Act 2014 sets out the legal framework for charging. Councils can make charges for care and support services they provide or arrange. They must do so in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014. Charges may only cover the cost the council incurs.
9. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The assessment must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25% (also known as the minimum income guarantee). 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)

The Minimum Income Guarantee

10. The Social care – charging for care and support Local Authority Circular DHSC (2019)1 sets out the level of the minimum income guarantee. This is increased if one member of the couple is in receipt of a disability premium or enhanced disability premium.

The Council’s Charging Policy

11. The Council’s Non-Residential Care Charging Policy sets out how the Council will financially assess individuals to determine the contribution they should pay towards the cost of their care. It says ‘the financial assessment will be based on the person’s income and capital only and their share of any joint income and capital’. It calculates the financial contribution by calculating:
• Income and capital
• Less Housing costs and DRE
• Less the minimum income guarantee.
12. The Council’s policy sets out that if a person disputes their charge or wishes to request a discretionary change to their assessed contribution this would be considered at a charging review meeting. The meeting is conducted by a specialist group of people who look at the individual circumstances of the assessment and make recommendations to the senior officer with delegated authority.
13. The policy also sets out the right to complain about any aspect of the financial assessment or the amount charged.

What happened

14. Mrs X receives a care package. Her personal budget is £183.15 per week. Mrs X previously paid £7.16 a week towards her care costs. In September 2019, a Welfare Rights Officer visited Mr and Mrs X to look at maximising their income. This led to an increase in the benefits they received. As there was a change in their household income the Council reassessed Mrs X’s contribution to her care costs. In calculating this the Council took into account:
• Mrs X’s income and half of any joint income received with Mr X;
• The minimum income guarantee taking account of the disability premiums received by Mr and Mrs X;
• Mrs X’s contribution to housing costs (half the council tax paid each week); and
• an amount for disability related expenditure.
15. Mrs X’s contribution increased to £42.61 per week.
16. The Council wrote to Mrs X in September 2019 setting out how it had calculated her contribution to her care costs. Mr X contacted the Council’s Welfare Rights Officer as they said they could not afford to pay the contribution. The Welfare Rights Officer arranged to visit Mr and Mrs X in November 2019. Then officer explained the calculations and confirmed the calculated contribution was correct.
17. Mr X contacted the Welfare Rights Officer in January 2020 to provide further information about other expenditure and a loan they had. The Welfare Rights Officer explained they could take the contribution to a charging review meeting but to do so they would need a full breakdown of their income and expenditure, with proofs needed for any essential expenditure.
18. In February 2020 Mrs X cancelled the direct debit which was set up to pay her contribution to her care costs. Mr and Mrs X sought advice from the Citizens Advice Bureau (CAB). Mr X set up a standing order to pay the amount he considered they could afford towards the costs of Mrs X’s care package. He told the Welfare Rights Officer that to pay the full contribution would cause them unnecessary hardship. The Welfare Rights Officer and Mr X exchanged text messages. Mr X said he had no problem paying what he had calculated they could afford to pay. The Welfare Rights Officer explained they could not accept an arrangement as it was an assessed contribution and was not negotiable.
19. Mr and Mrs X provided the Council with a breakdown of their income and expenditure and the Council’s charging review meeting considered their case in early March 2020. The charging review meeting rejected the request. It considered the income and expenditure form evidenced a weekly credit balance without reconsidering their non-essential expenses. It noted the financial information showed expenditure on three mobile phones, Sky TV, pet insurance and pet grooming which it said could be reconsidered by Mr and Mrs X.
20. The Council wrote to Mrs X in mid-March 2020. The charging review meeting did not agree to their request to reduce their assessed client contribution. It said their income and expenditure did not clearly demonstrate the client contribution would cause financial hardship. The letter referred to them having a CAB adviser and went on to say ‘please can you provide confirmation that CAB have contacted all your creditors requesting a freeze on interest and that they have accepted nominal payments while a debt relief order or an IVA [individual voluntary agreement] are entered into’.
21. Mr X contacted the Welfare Rights Officer. He said he had budgeted for his debts and was not prepared to go on a debt management plan. He wanted to appeal the decision. The Welfare Rights Officer spoke to Mr X. They explained the contribution remained due. They explained the letter advised about a debt relief order and individual voluntary agreement as it appeared they were paying non- priority debts and choosing not to pay the care contribution. The Welfare Rights Officer offered to go over the income and expenditure form and devise a budget but explained this would be once the COVID-19 pandemic was under control.
22. The Council wrote to Mr X in mid-April 2020. It said the request to reduce the assessed contribution due to hardship raised questions regarding the advice given by the CAB. The Council said it would expect non-priority debts to be negotiated with creditors and that payment of such debts were not prioritised over payment for essential care and support. It apologised if the reference to an IVA caused him any distress and it understood this was not something Mr X wished to consider.
23. Mr X responded that he wanted his complaint considered by an independent department. He did not consider the care contribution should be a higher priority than his existing debts. He said he would not contact his creditors and disputed that they could afford the assessed contribution. He wanted to go to mediation or for the Council to accept that the amount they were paying was all they could afford.
24. Mr X submitted a formal complaint to the Council in July 2020. The investigator found:
• The financial assessment was completed in line with the Council’s charging policy. Mr and Mrs X were aware there would be an increase in their financial contribution when their benefits increased.
• The increased contribution did not take account of a back payment of benefit Mr and Mrs X received.
• The investigating officer reviewed the income and expenditure and considered Mr and Mrs X had sufficient funds to pay the financial contribution and also to pay their other monthly outgoings including credit cards, mobile phones, Sky television and pet insurance.
25. They did not uphold the complaint about the financial assessment and that the increased contribution was not affordable.
26. The Council’s adjudicating officer wrote to Mr X in early January 2021 with the outcome of the investigation. It apologised for the delay in reaching a conclusion to the investigation. It said that due to the COVID-19 pandemic it placed complaint responses on hold as it responded to the crisis.

Findings

27. The Ombudsman is not an appeal body. We cannot question a council’s decisions if there is no fault in the way the decisions are reached.
28. The Council calculated Mrs X’s contribution to her care charges in line with the relevant statutory guidance, regulations and the Council’s own policy. It left Mrs X with an amount in line with the minimum income guarantee set by the Government. Mr and Mrs X are unhappy the Council has not taken into account all their loans and other debts when calculating what they can afford to pay, but the Council is not required to do so. There was no fault in the way it carried out the financial assessment.
29. When Mr and Mrs X said they could not afford the contribution, in line with its charging policy, the Council’s charging review meeting considered their income and expenditure and whether they would be caused hardship. It was satisfied they could afford to pay their contribution. There was no fault in the way it reached this decision.
30. When the Council wrote to Mr X it asked for confirmation the CAB had contacted his creditors and referred to an IVA and debt relief order. Mr X was unhappy with this suggestion and the wording of this letter. The wording of the letter was direct and suggested an expectation Mr X would pursue these options. However, I stop short of calling this fault as it was open to the Council to offer Mr X advice about his options and to do so is good practice. In addition, the Council apologised if reference to an IVA caused him any distress and it acknowledged this was not an option Mr X wished to consider.
31. The Council properly investigated Mr X’s complaint. There was a delay in it completing the investigation and providing them with an outcome due to the COVID-19 pandemic. We would expect councils to keep complainants updated when there are delays in completing complaint investigations. The Council’s adjudicating officer has already apologised for the delay which was appropriate and so there is nothing else I could achieve by considering this further.

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Final decision

32. I have completed my investigation as there is no evidence of fault by the Council in the way it has assessed Mrs X’s financial contribution to her care charges.

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Investigator's decision on behalf of the Ombudsman