Summary: Mrs C said the Council delayed in carrying out a financial assessment of her contributions towards her adult social care. The Council was at fault for delay. This caused Mrs C injustice in that she faced stress and uncertainty. The Council has agreed to pay Mrs C a sum in recognition of this injustice.

The complaint

1. The complainant, Mrs C, said the Council:
1. delayed in processing her appeal about the contribution she had to pay towards her adult social care;
2. confused the facts of her case with those of another Council customer which she says, was a data breach; and
3. failed to acknowledge or apologise for its failures.
2. Mrs C said this caused her to be scared and dejected because of the changes to her payments and the uncertainty about the appeal. She said the data breach also led to further anxiety and a loss of trust.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. 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. If we are satisfied with an organisation’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

5. I spoke to Mrs C. I wrote an enquiry letter to the Council. I considered all the information I had gathered and applied any relevant law and guidance.
6. Mrs 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

What should happen

Charging for social care services: the power to charge

7. 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 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)

How to assess: thresholds and disability related expenditure

8. Where a council has decided to charge for adult social care, it must carry out a financial assessment to determine what a person can afford to pay. It must then give the person a written record of the completed assessment. A council must not charge more than the costs it incurs to meet a person’s assessed eligible needs.
9. 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

10. 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.

Disability Living Allowance/Personal Independence Payments

11. The government provides assistance with the costs of care and mobility to those living with disabling conditions. In 1992, it introduced the Disability Living Allowance (‘DLA’). All those suffering from disabilities which affected mobility or required personal care were eligible.
12. In 2012, the government introduced the new Personal Independence Payment (‘PIP’) scheme which replaced DLA in 2013. Now, all new claimants apart from children receive PIPs and all existing claimants apart from pensioners should have transferred from DLA to PIPs.
13. PIP payments are broken down into two categories: daily living and mobility. PIP recipients can receive higher or lower rate payments for each category.

Direct payments

14. Direct payments (DPs) are payments made by a council to an individual (or their representative) so that they can choose and pay for their social care themselves. Direct payments should be paid into a dedicated bank account and the money must be spent only on agreed goods and services.

What happened

Background

15. Mrs C has a health condition which entitled her to the DLA and, later to a PIP. She now receives higher rate PIPs. She lives alone in the Council’s area. She has received adult social care in her home since 2017. She receives direct payments to pay for her services and must make a contribution towards the cost of those services. Her contribution was originally assessed as £43.33 per week.
16. In April 2018, the Council reassessed Mrs C’s contribution towards her care. The reassessment reduced her weekly contribution to £40.77. Mrs C paid this amount until 2021. In early January 2021, the Council wrote to all customers advising that it would soon carry out further reassessments of adult social care contributions.

The complaint

17. In March 2021, the Council carried out Mrs C’s reassessment. It checked her Department of Work and Pensions records to find out her income. It asked her to state her household costs and other DRE. Mrs C requested a meeting with her advocate present. The Council arranged a meeting for the end of March 2021.
18. At the meeting, Mrs C and her advocate confirmed Mrs C’s housing costs and set out other DRE which, they said, should be exempt.
19. Four days later, the Council sent Mrs C a reassessment letter and a charge sheet. The reassessment produced a weekly figure of £15.85, backdated to January 2021. The Council says its calculations were incorrect because it wrongly stated the MIG because it believed Mrs C was a carer. It also input the lower, rather than the higher PIP payment rate into the calculation.
20. Mrs C asked the Council to recalculate and to take into account more DRE. The Council carried out a further reassessment in late March 2021. It allowed some but not all of the further DRE. It also reduced the MIG as Mrs C was not a carer. It now calculated her contribution as £60.86 backdated to January 2021.
21. Mrs C says she was distressed by this large change in her contribution and in the consequent deficit in her payment account. On 12 May 2021, Mrs C sent the Council her appeal against this decision.
22. On 4 June 21, the Council sent Mrs C an invoice for £675.15: the amount now owing when the new £60.86 weekly payment was backdated to January 2021.
23. A few days later, Mrs C’s doctor sent the Council further evidence of her DRE.
24. In July 2021, Mrs C wrote to the Council saying it should not have billed her for the full amount owing when she had an outstanding appeal. However, three days later, the Council sent her a ‘red’ invoice demanding immediate payment.
25. In mid-October 2021, the Council again recalculated Mrs C’s contribution, this time inputting the higher rate PIP payment. It also allowed extra DRE which slightly reduced the final figure. Nonetheless, after this recalculation, the weekly payment increased again to £67.99. The Council did not immediately tell Mrs C.
26. It was at around this time that Mrs C complained to the Ombudsman.
27. The Council then wrote to Mrs C on 16 November 2021 sending its appeal response. The next day, it wrote to her again explaining errors in the appeal response. Five days after that, it sent Mrs C a further ‘red invoice’ for £278.07.
28. In mid-December 2021, Mrs C’s advocate wrote to the Council saying she had had to borrow money to repay the outstanding contributions. She said Mrs C should have been offered a repayment plan to help her pay the recalculated debt.
29. On 21 December 2021, the Council responded, it said it had suspended the collection process and would allow payment by instalments. It said it would check for problems with the direct payments and asked for a meeting in January 2022.
30. Mrs C responded the same day and accepted the payment plan and asked for confirmation that the Council would not take legal action immediately to recover the debt as it had threatened. The Council responded immediately to confirm that it would not take legal action.
31. Mrs C and her advocate met the Council early in January 2022. The Council agreed to liaise with its payments team to help set up a repayment plan and with its DP team to ask them to explain to Mrs C and her advocate the way DPs work.
32. Mrs C’s advocate contacted the Council three times over the next six weeks asking for an update without response. In late February 2022, the Council wrote to the advocate apologising for its delay in responding. The same day, a Council officer asked for a further meeting. The Council also sent Mrs C a further reminder letter demanding the outstanding balance.
33. Mrs C emailed the Council saying she felt threatened and reminded the Council that it had agreed to certain actions in January which it had not carried out. Over the next two weeks Mrs C’s advocate wrote to the Council a further four times chasing a response. The Council then sent a further letter to Mrs C apologising for the further demand for payment and confirming that it would hold a meeting with Mrs C that day.
34. An officer attended the meeting and apologised for the Council’s failure to carry out the actions agreed at the January meeting. They also said they had not prepared for the meeting and so could not deal with the outstanding issues.
35. At the time of writing, the Council continues to correspond with Mrs C.

Was there fault causing injustice?

Calculation

36. If Mrs C disagrees with the most recent calculation, she can appeal to the Council. I have not, therefore, dealt with this.

Delay

37. Mrs C appealed against the Council’s decision that she should pay £60.87 a week on 12 May 2021. The Council did not decide that appeal until October 2021. The Council says that this was caused by the fact that it was reassessing everyone in its area who paid a contribution to their non-residential adult social care. Nonetheless, this was fault. It should have decided this appeal sooner, or at least kept Mrs C aware of the reasons for the delay.
38. Further, the Council began debt recovery processes on three occasions after Mrs C had lodged an appeal against the decision to increase her payments. This too was fault. It caused Mrs C considerable distress as did the sending of a red-topped letter threatening legal action if payment was not immediately sent just before Christmas.
39. The Council has accepted that it was at fault on both counts. I have decided that a financial payment is appropriate in this case because of the severity of the injustice caused. I have taken into account, when deciding the level of the payment, the length of the period during which Mrs C was caused distress by Council fault.
40. I have also considered the fact that Mrs C says that, because of the Council’s demands for payment and threat of legal action in December 2021, she had to borrow money to pay the arrears. The Council later allowed her to stop the cheque, nonetheless, this was distressing for her.

Poor communication

41. The Council was also at fault for numerous errors of communication with Mrs C and her advocate which meant that the issue had still not been properly explained to Mrs C a year after the initial reassessment in March 2021. The Council sent numerous demands for payment which it accepts that it should not have done. This too was fault and it caused Mrs C distress which was an injustice.

Miscalculation/data breach

42. Mrs C says that the Council confused her case with that of another Council customer and says this explained some of the differences in the calculations. The Council says, and I accept, that this was not the case. It says the differences were caused by its use of incorrect figures but did not involve anyone else’s data.
43. For example, in its March 2021 calculations, it treated Mrs C as a carer. This meant that her MIG was too high. Then, it entered an incorrect sum for her PIP which meant that it assessed her income as too low. It then realised, in its next two calculations that Mrs C was not a carer. Later still it realised it had used the lower PIP rate and had to revise its calculations again.
44. The Council accepts that, in early 2022, a Council officer misstated Mrs C’s condition and, as a result, made incorrect statements of her needs. However, it says this was not because it confused Mrs C with another service user.
45. In summary, while I am satisfied that there was no data breach, the Council was clearly fault for miscalculating Mrs C’s contribution on three occasions before reaching the right figure.
46. Mrs C complained, in an email to the Council, that this had caused a deficit to develop in her payment balance which was not her fault. She argued that she should not, therefore, have to pay that shortfall.
47. I accept that any shortfall was not Mrs C’s fault and I agree that Council fault caused an additional injustice to Mrs C. I have considered this when making my recommendation for a financial remedy.
48. However, I do not agree with Mrs C’s view that she should not have to pay any shortfall owing after any appeal Mrs C brings. The Council is entitled to charge a contribution towards adult social care. Unless Mrs C successfully appeals the current assessment therefore, Mrs C should pay the amount now due.

Failure to apologise

49. There is evidence that the Council apologised to Mrs C on several occasions throughout this process. However, these were inadequate for the continued injustice caused by repeated failures. I have therefore recommended that the Council should apologise again.

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Agreed action

50. The Council has agreed that, within four weeks of the date of this decision, it will write to Mrs C and apologise for the fault found and pay her £300.
51. The Council has also agreed that, within two months of the date of this decision, it will examine ways of ensuring that:
1. It does not send demands for payment when an appeal is pending,
2. It does not make similar miscalculations in future, and
3. Communication both within the department and with customers improves.
52. The Council has agreed that it will then write to the Ombudsman setting out changes it has made or intends to make to improve its service in these areas.

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Final decision

53. I have I have made my decision and closed my investigation.

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Investigator's decision on behalf of the Ombudsman