Summary: Ms C complains the Council failed to calculate charges properly and inappropriately pursued for arrears. As well as making some procedural changes the Council has agreed to apologise to Ms C and pay her £250 for how it dealt with backdating charges. The Council is also at fault for failing to properly consider payments made by Ms C towards housing and council tax in financial assessments for care at home. It has agreed to reconsider Ms D’s current financial assessment and review procedures.

The complaint

1. The complainant who I call Ms C complains in her own right and on behalf of her daughter who I call Ms D.
2. Ms C complains the Council inappropriately back dated care charges and that Ms D’s current assessed charge does not accurately reflect her outgoings.
3. As a result Ms C says she has had time, trouble, frustration in complaining to the Council and anxiety caused by a large bill. Ms C says Ms D has a current weekly assessed charge for care at home that she cannot pay.

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The Ombudsman’s role and powers

4. 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)
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 spoke with Ms C about what she wanted to achieve from the complaint and read information she provided. I asked for information from the Council and considered its response. I reviewed:-
• Care Act 2014 and the associated Care and Support Statutory Guidance (CSSG);
• financial assessments;
• complaint correspondence.
7. Ms C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

8. Ms D lives with Ms C. Ms D is eligible for support from the Council to help her meet her care needs. The Council provides her with a direct payment (money) so she can pay for care workers to support her.

What should have happened

9. 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)
10. The Care Act 2014 and CSSG says 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 after charging, a person must be left with the minimum income guarantee (MIG), as set out in the Care and Support (Charging and Assessment of Resources) Regulation 2014.
11. Paragraph 49 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. For example, a council tenant will have water rates as part of a rent service charge whilst a private or housing association tenant will not."
12. The Council’s charging policy for Homecare and other Non-Residential Services 2021/2022 says the following should be deducted,

“any rent paid (i.e., After Housing Benefit taken off)….. In most cases, you need to verify rent paid. The only exceptions would be where a person pays an amount to a relative, they live with. In these cases, the figure should be accepted if it appears reasonable, and as long as you don’t include an amount for food. It should also be a figure in proportion to the number of people in the household”.

What happened

13. In 2015 the Council assessed Ms D as having a nil contribution towards her care costs. In 2020 the Council reassessed Ms D as having a chargeable service and backdated the charge to 2017 creating a debt. This was based on an increase in Ms D’s benefits that occurred in 2017. Ms C disputed the charge and the arrears.
14. Because of Ms C’s complaint the Council waived the arrears. The Council has accepted several faults which include delays in dealing and responding to complaint correspondence and missed opportunities to properly consider and resolve matters.
15. In response to my enquiries the Council agreed to apologise to Ms C, pay her £250 in acknowledgement for the time, trouble, and frustration these errors caused her. It has also made procedural changes which include:-
• at every review reminding young people and their parents about the charging policy and the need to tell the Council of any change in benefits;
• introducing 17 bite-size training sessions for relevant teams about charging which includes feedback from staff and general learning from complaints.
16. Ms C also disputed Ms D’s assessment of charge. This resulted in the Council reducing the charge by £30.
17. Ms C says Ms D contributes to both the council tax and mortgage and the Council should allow these payments as part of the financial assessment.
18. In its complaint response dated 10 September 2021 the Council said “KCC’s DREA policy does not cover a disregard re contribution to rent/mortgage or council tax. It is a family’s decision whether the YP living at home contributes to the above cost (whether they receive benefits or not) and each family has their own specific circumstance for making these decisions”. The Council agreed to complete a financial hardship assessment to look at Ms D’s income and outgoings.
19. In response to a draft of this statement the Council has offered to consider Ms D’s payments to Ms C to see what proportion, if any, they can be attributed to housing and council tax costs in line with its policy detailed above.

Is there fault causing injustice

20. The Council’s early acceptance of fault and remedy proposal in relation to the arrears and complaint handling is welcomed. I consider the proposal sufficient to remedy this element of complaint and Ms C’s personal injustice.
21. The Council failed to properly consider what proportion of Ms D’s payments to Ms C were for housing and council tax. This is not in line with its own policy and paragraph 49 CSSG referred to above. This is fault.
22. As a result Ms D’s assessed charge may be greater than it should be. Ms C has also had time and trouble in pursuing the matter.

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Agreed action

23. I consider there was fault in the actions of the Council, and this has caused Ms C and Ms D injustice. I consider the following agreed actions are suitable to remedy Ms C’s and Ms D’s personal injustice and improve policies and procedures for others:-
1. apologise to Ms C for the failures in billing and assessment of charge;
2. pay Ms C £250 for her time, trouble and the frustration the Council’s errors have caused;
3. reassess Ms D’s charge for care considering the CSSG outlined above concerning payments towards housing and council tax costs. This will involve Ms D having to provide evidence of payments made and Ms C providing evidence of household bills;
4. review the charging policy to account for situations such as Ms D’s;
5. advise and if necessary, provide staff training about any changes to the charging policy.
24. The Council should complete (a) to (c) within one month of the final decision and (d) to (e) within three months of the final decision.

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Final decision

25. I have found fault in the actions of the Council which has caused Ms C and Ms D injustice. I consider the agreed actions are appropriate to remedy the complaint. I have now completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman