North Yorkshire County Council (21 013 076)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 09 Aug 2022

The Ombudsman's final decision:

Summary: Mr C complains about the quality of care the Council has provided and the Council’s pursual of unpaid home support charges. Mr C says he should not have to pay for inadequate care. The Council has waived over £6000 of fees to reflect the poor care Mr C received and debt that it is unable to recover. The Council was at fault for failing to consider a waiver earlier. It has since adjusted Mr C’s bill and appropriately remedied the complaint.

The complaint

  1. The complainant who I call Mr C complains he should not be liable for care charges when the Council has failed to commission suitable care. Mr C says the care he received was substandard and dangerous.
  2. Mr C says as a result of the Council’s actions he has accrued arrears and has had to endure poor care services. This has caused him stress, time, and trouble in dealing with the debt.

Back to top

What I have investigated

  1. For the reasons set out below I have not investigated care provision prior to 2019.

Back to top

The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
  2. 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)

Back to top

How I considered this complaint

  1. I spoke with Mr C and considered information he provided. I asked for information from the Council and several questions. I considered the Council’s response and:
    • Mr C’s financial assessments;
    • complaint chronology;
    • case chronology;
    • Care Act 2014 and the associated Care and Support Statutory Guidance (CSSG);
    • Care and Support (Charging and Assessment of Resources) Regulations 2014.
  2. Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Background information

  1. Mr C has received a service from the Council for over 15 years. Mr C has a chargeable service and accrued a debt of £31864.17 which dates from 2008.

What should have happened

  1. A council has a duty to arrange care and support for those with eligible needs. 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)
  2. Where a council has decided to charge, it must conduct 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.
  3. People receiving care and support other than in a care home need to keep a certain level of income to cover their living costs. Councils’ financial assessments can take a person’s income and capital into consideration. 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 )
  4. Paragraph 16 Annex C of CSSG says income from Personal Independence Payment (Daily Living Component) must be taken into account when considering what a person can afford to pay from their income towards the cost of their care and support in a care home.
  5. Annex D of CSSG says:

“For any new debts that occur after the commencement of the Care Act 2014, the time period to recover debts has been extended to 6 years from the date when the sum became due to the local authority. Where a debt is taking time to be recovered, provided legal proceedings have issued within the limitation period, enforcement can continue. If it has not, the debt must be written off”

  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.

What happened

  1. Over the years Mr C has had several commissioned care providers from the Council. Mr C has made complaints about the quality of care he has received and at times commissioned services have withdrawn support as paid carers could not work with Mr C.
  2. The Ombudsman did not uphold a complaint about care services Mr C received in 2018. Since then Mr C has received services from two agencies where he has had no significant complaints.
  3. Mr C has refused to pay for services as he does not consider the Council has properly calculated his charges and he does not consider he should have to pay for poor care.

Assessed weekly charge

  1. An advice agency supported Mr C to challenge the Council’s calculation of his care charges. The two key issues were:-
    • the Council’s consideration of Mr C’s DRE;
    • the wrong MIG calculation as the Council took into account all of Mr C’s Personal Independence Payment (PIP) including an enhanced rate.

Is there fault causing injustice?

  1. The Ombudsman does not have the power to challenge a professional judgement unless there is procedural fault. The Council has properly considered the disability related expenses and made a reasoned judgement on why it has rejected some items. I therefore find no fault in this part of the complaint.
  2. Paragraph 16 Annex C of CSSG detailed above says councils must take PIP into account when it is calculating charges. I therefore find no fault in the Council including this as part of its charging assessment.

Accrued debt

  1. After the complaint to the Ombudsman the Council waived £6551.21 of an accrued debt of £31864.17. This leaves an outstanding debt of £25312.96.
  2. The waiver amount represents care charges accrued outside of the limitation period which the Council would find difficult to enforce in the courts. The Council says the waiver is in recognition of the poor care Mr C received and because it would be difficult to recover these arrears at court.
  3. In November 2021 Mr C agreed to pay £200 per month towards his arrears. However so far it appears Mr C has not paid his current care charge of £95.34 per week, and only half of the payments he agreed in his payment plan.

Is there fault causing injustice?

  1. As a public body the Council is responsible for protecting the public purse and ensuring it has services available to meet the needs of all its citizens. It therefore has a responsibility to recoup money owed. I find no fault in the Council pursuing Mr C for outstanding arrears. The Council has offered Mr C several opportunities and payment plans to pay for his current care and outstanding arrears.
  2. The Council was aware that it could not pursue Mr C for debt that was more than six years old but did not adjust his bill until his recent complaint. I consider this delay amounts to fault. I am however unable to say the Council’s fault caused Mr C significant injustice as he has made limited payments towards his care charges.
  3. I am not investigating Mr C’s complaints about the care he received before 2019. I am therefore unable to comment on whether the waiver is sufficient to address the service failure he experienced.

Back to top

Final decision

  1. I consider there was fault in the actions of the Council which caused Mr C injustice. The Council has remedied the complaint by waiving six years of unpaid care charges. I consider this is a suitable remedy and have now completed my investigation and closed the complaint.

Back to top

Parts of the complaint that I did not investigate

  1. I have not investigated issues about the quality of care Mr C received before 2019. This is because they are more than 12 months old and there is no reason Mr C could not have brought a complaint to us earlier.
  2. Also a previous Ombudsman’s investigation in 2018 found no fault in the Councils actions.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Privacy settings