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Wirral Metropolitan Borough Council (21 007 570)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 16 May 2022

The Ombudsman's final decision:

Summary: Mrs X complains the Council unfairly charged backdated care contributions for her son’s care. We consider there is no fault regarding the backdated charge. However, there is evidence of fault in the Council’s communications, and we recommended a remedy.

The complaint

  1. The complainant, whom I shall call Mrs X, complains the Council is unfairly pursuing a year’s charges for her disabled adult son Mr B’s care contributions and has not properly taken his circumstances into account in calculating the charges.
  2. Mrs X also complains the Council failed to provide transition support when Mr B changed address in 2019.

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What I have investigated

  1. I have investigated Mrs X’s complaint about care contributions, but I have not investigated her complaint about transition support for the reasons I explain in paragraphs 44-46.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I have discussed the complaint with the complainant and considered the complaint and the copy correspondence provided by the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided. I have considered the relevant law and guidance.
  2. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Legislation and guidance

Charging for social care services: the power to charge

  1. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in settings other than care homes. A council has discretion to charge for non-residential care following a person’s needs assessment. Where it decides to charge a council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)

Assessing contributions

  1. Where a council has decided to charge, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. Councils have no power to assess couples according to their joint resources. Each person much be treated individually. A council must not charge more than the costs it incurs to meet a person’s assessed eligible needs.
  2. People receiving care and support other than in a care home need to retain a certain level of income to cover their living costs. Councils’ financial assessments can take a person’s income and capital into consideration, but not the value of their home. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by national government and reviewed each year. A council can allow people to keep more than the MIG. (Care Act 2014.)

Disability Related Expenditure

  1. Where a council takes disability-related benefit into account when calculating how much a person should contribute towards the cost of their care, it should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs the council is not meeting. The Care and Support Statutory Guidance sets out a list of examples but says any reasonable additional costs directly related to a person's disability should be included. What counts as DRE should not be limited to what is necessary for care and support. For example, above average heating costs should be considered.

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What I found

  1. Mr B was living with his parents Mr and Mrs X in 2019. Mr and Mrs X acted as their son’s appointee for benefits and finances. This means they had responsibility for benefit claims and payments for care.
  2. The Council had assessed Mr B’s needs and he had been receiving 35 hours of 1:1 care and support. The Council had assessed his financial contribution for the care he received at home. The Council confirmed Mr B had nothing to pay based on his income from benefits. The Council’s assessment took account of disability related expenditure (DRE), which it stated was £62 per week.
  3. In November 2019, Mr B moved into supported accommodation.
  4. In February 2020 the Council says officers from its Personal Finance Unit, which carries out financial assessments, contacted Mrs X to explain the DRE and how this worked. The Council sent Mrs X a notification letter regarding the financial assessment and DRE. This confirmed Mr B had nothing to pay. The letter explained the income used in the calculation. It also stated that “if there are any changes in future to your finances you must inform us so that we can review your assessed charge.”
  5. In April 2020 the Council sent Mrs X a letter regarding an annual review of Mr B’s care charges for support at home. The annual review took account of the annual uprating of benefits for all claimants, but did not review Mr B’s specific circumstances. It confirmed Mr B had nothing to pay. The assessment referred to Mr B’s income from employment support allowance (ESA) and disability living allowance. It included allowed expenses for disability related expenses for £43 per week for Mr B, described as “lock, holiday, furniture, bathroom”. The Council also advised again that Mrs X must tell it about any changes in Mr B’s finances.
  6. In early 2020 Mrs X applied for an increased ESA for Mr B. The Department of Work and Pensions agreed an extra £67 per week from April 2020. However, Mrs X did not inform the Council. She says that she did not know that she should. In addition, she said things were very difficult for Mr B and for herself during the Covid 19 lockdowns. This affected his mental wellbeing.
  7. In late January 2021 the Council started a review of care contributions for service users with nil charge. It checked with The Department of Work and Pensions and found that Mr B’s income from ESA had increased. In March 2021 the Council reassessed his financial contribution, backdating this to April 2020. The backdated charges were £2175, and weekly ongoing charges were £55 per week.
  8. The Council wrote to Mrs X saying it had received information about a change in Mr B’s income so it had recalculated how much he had to contribute towards the cost of his care. It said he had to pay £55 per week from April 2020 and provided a breakdown of the weekly calculation.
  9. Mrs X called the Council about the charges. The Council told her the charges were correct. Mrs X then wrote to the Council on 20 March 2021 to say she was horrified and could not understand why it had charged Mr B. She expected the Council to contact her and explain how it had calculated the charges. She said no one had advised her when Mr B moved that he needed to contribute to his care. She set out his income and expenses and said that he could not afford to pay the amount the Council charged. She asked the Council for its complaints procedure.
  10. The Council did not register Mrs X’s email as a complaint or send her its complaints procedure. It logged it as an incoming email, but did not respond to it.
  11. After receiving reminders for payment of the outstanding amount, Mrs B complained to her councillor on 19 April 2020.
  12. The Council’s response in May to the councillor explained it periodically reviewed financial assessments to ensure that people were not under or over charged. The Council had reviewed Mr B’s case and found his income from ESA increased. It said it recalculated the contribution which was £55 per week. The Council said that it would have advised Mrs X that she should inform it if Mr B’s income was incorrect or had changed. The Council noted Mrs X referred to DRE. It confirmed the expenditure it included. But it explained that expenses such as TV licence, food, broadband and insurance were not DRE, as they were day to day expenses paid from benefits. However, it said that it could consider expenses which may increase the DRE such as specialist dietary requirements, broadband costs, and vehicle running costs if mobility allowance was used to pay for the vehicle.
  13. In May 2021 the Council sent Mrs X a reminder for outstanding charges of £2398. Mrs X complained to the Council on 18 May. She said that she wanted to appeal against the amount it charged and asked it to stop sending invoices.
  14. The Council logged Mrs X’s complaint. An officer video called her in June. Mr B was present during this call and became agitated. Despite the call in June, the Council did not respond in writing and sent invoices and reminders. In late July the Council apologised about sending invoices while considering the complaint.
  15. Mrs X says she asked her sister to deal with the complaint due to the impact on her mental wellbeing. Mrs X informed the Council, but it sent its complaint reply to her, not her sister, on 14 August 2021. The Council says it could not respond to her sister as she did not have legal authority.
  16. The Council apologised for its delay in responding and for sending invoices while considering her complaint. But it did not uphold her complaint because it said its letter in February 2020 explained how it had worked out the financial contribution was nil based on Mr B’s income. The letter advised Mrs X “if there are any changes in the future to your finances you must inform us so that we can review your assessed charge.” The Council reviewed Mr B’s nil contribution in March 2021 and found his benefit had changed but Mrs X had not reported this. It said if Mrs X had reported the income change at the time it happened it could have revised the charge earlier. The Council recognised the large unexpected bill was distressing and said that it was not its intention to distress Mr B or Mrs X. Finally, it said that it wanted to reassure Mrs X that it would not look to recover the total amount if it would put Mr B in financial difficulty. It said it would complete an affordability assessment to ensure Mr B could manage the repayments.
  17. Mrs X complained to the Ombudsman about the Council seeking 12 months of backdated charges. She said it had not completed a financial assessment when Mr B moved. She said the Council had not considered Mr B’s DRE and these were based on him still living at home. Now the increase in Mr B’s benefits to support his disability was almost entirely clawed back by the Council. She said he could not afford to pay the contribution or the arrears. Mrs X also referred to an earlier Ombudsman decision in 2019 which found similar faults by the Council. The Ombudsman recommended service improvements including a review of the Council’s policies, particularly:
    • A reconsideration of how it carries out annual reviews, as an annual uprating review may not be enough especially when a person changes accommodation.
    • Addressing the need for effective communication especially when notifying users of changes in assessed charges so they can understand the reasons.
    • Ensuring that officers check the reasonableness of recovering backdated care charges before attempting recovery.
  18. In December 2021, prompted by our initial enquiries, the Council sent Mrs X an affordability assessment form so that it could work out Mr B’s disposable income and a potential repayment plan.
  19. Mrs X has also complained that the Council has failed to take account of a High Court judgement against Norfolk County Council in 2020 when setting its charging policy. The court found that Norfolk had not properly considered the differential impact of its charging policy on more severely disabled people.

Analysis

  1. I have not seen evidence of fault by the Council regarding its backdating of the financial contribution. The financial contribution notification letters the Council sent to Mrs X stated she must advise it of any changes in Mr B’s finances. Mr B’s income increased in April 2020, but Mrs X did not advise the Council. The Council found out about the increase when it reviewed cases with nil charge in March 2021. While the Council could have reviewed the financial assessment earlier, it was Mrs X who had the primary responsibility to advise the Council of the increase in Mr B’s income.
  2. I have considered the Council’s financial assessments. The Council advised Mrs X of its financial assessment of Mr B’s contributions in February 2020 and April 2020. These assessments referred to Mr B’s income from benefits and the DRE the Council had accepted. It is reasonable to expect Mrs X to tell the Council of the increase in benefits in April and to have contacted the Council if she considered the DRE was incorrect.
  3. However, I note that the Council’s April 2020 review was only of the basis of the annual benefits uprating. It did not consider the change in Mr B’s circumstances particularly that he had moved to a different type of accommodation and therefore may have different income and expenses. I would expect a Council to carry out a more detailed review within 12 months of a significant change in circumstances.
  4. The Ombudsman upheld a similar complaint against the Council in October 2019. We found the Council failed to carry out a more detailed review than a limited uprating review of a service user’s charges when he moved from home to supported living. We recommended the Council reviewed its policy to ensure that it reconsidered how it carried out reviews when there has been a significant change of circumstances. The Council agreed to carry out a review, but it has not yet completed this. The Council explains this is partly due to the Council including the review within a wider review of its revenues and benefits service which has taken longer. The review was also delayed due to the Council’s resources being affected by the Covid 19 pandemic. I note the Council’s response, but I consider, it has taken significantly longer than it should have done to implement this recommendation. I have made a further recommendation in respect of this.
  5. While I consider there has been further avoidable delay in the policy review, I do not consider that not having a more in depth review when his circumstances changed has led to an injustice to Mr B. If the Council had carried out a review within 12 months of Mr B’s move, so by December 2020 at the latest, it could have identified earlier that he needed to make contributions. But this is not significantly earlier than its review which began in January 2021.
  6. I note Mrs X says the Council should have carried out the review earlier and considered Mr B’s DRE. I have not seen evidence that Mrs X asked the Council to review his contributions or the DRE earlier. I have recommended that the Council carries out a review of Mr B’s DRE. But I do not know whether the review is likely to lead to a reduction in Mr B’s contributions. So, I do not consider there is necessarily fault by the Council here that has caused Mr B injustice.
  7. However, I have found evidence of fault in the Council’s communication with Mrs X which caused her frustration and time and trouble. The Council did not properly explain the reason for the contributions in its letter of March 2021. The Ombudsman’s previous decision recommended that the Council improve its communication to ensure service users understood the reason for contribution increases. The Council did not reply when Mrs X asked the Council for an explanation in March 2021. She then complained to her Councillor but the Council did not respond until May 2021.
  8. The Council also took until August 2021 to reply to Mrs X’s complaint of May 2021. This caused her further frustration and distress as during this time the Council continued to send invoices and reminders.
  9. The Council said it would carry out an affordability assessment in August 2021 but did not write to Mrs X until December 2021. However, I note that Mrs X did not respond until April 2022. The delay here is fault, but I do not consider it caused significant injustice to Mrs X. The Council should consider affordability when seeking recovery of the outstanding arrears.
  10. The Council has confirmed that it plans to review its Charging and Financial Assessment Policy, having regard to The Norfolk Judgement.

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Agreed action

  1. To remedy the faults I have identified causing personal injustice I recommended that within six weeks of my decision, the Council should:
    • apologise to Mrs X for its poor communication, delay in responding to her complaint and the other faults I have identified.
    • Pay Mrs X £150.
    • review its financial assessment of Mr B’s contributions including consideration of his DRE since he moved into supported accommodation. If there is any overpayment, the Council should consider whether it should recover this.
  2. To remedy the service faults I recommended that within three months of my decision the Council should:
    • Ensure it completes its review of its financial assessment policy as agreed in October 2019. This should address the three points agreed in 2019 as set out in paragraph 28.
    • The Council should complete its review of its Charging and Financial Assessment policy, taking account of the Norfolk Judgement and provide evidence of its consideration.

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Final decision

  1. The Council has agreed to remedy the faults causing injustice. I have completed my investigation and closed the complaint.

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Parts of the complaint that I did not investigate

  1. Mrs X complained in August 2021 to the Ombudsman about poor transition support for Mr B when he moved in November 2019 to supported living accommodation.
  2. 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)
  3. Mrs X’s complaint is late, as it is more than 12 months since it came to her attention. Mrs X could have raised a complaint earlier. I do not consider there are good reasons to investigate this part of the complaint.

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Investigator's decision on behalf of the Ombudsman

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