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Surrey County Council (21 013 360)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 11 May 2022

The Ombudsman's final decision:

Summary: Mrs X complained about the Council’s decision to charge her daughter for care, causing distress and financial loss. We found no fault in the Council’s decision making but we found fault in its communications. We recommended the Council take action to prevent injustice to others in future.

The complaint

  1. Mrs X complains about the Council’s decision to charge her daughter, Miss Y, for care. She says the Council did not consider relevant information and unreasonably requested that she gather evidence, causing distress. She believes the charges are discriminatory.

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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. We cannot question whether an organisation’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 provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide any fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6))
  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

  1. I spoke to Mrs X and I reviewed documents provided by Mrs X and the Council.
  2. I gave Mrs X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Equality Act

  1. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
  2. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
  3. The ‘protected characteristics’ referred to in the Act are:
    • age,
    • disability,
    • gender reassignment,
    • marriage and civil partnership,
    • pregnancy and maternity,
    • race,
    • religion or belief,
    • sex, and
    • sexual orientation.

Direct discrimination

  1. Direct discrimination occurs when a person treats another less favourably than they treat or would treat others because of a protected characteristic.
  2. Direct discrimination is generally unlawful. However, it may be lawful in the following circumstances:
    • in relation to the protected characteristic of disability, where a disabled person is treated more favourably than a non-disabled person;
    • where the Act provides an express exception which permits directly discriminatory treatment that would otherwise be unlawful.

Indirect discrimination

  1. Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.

Financial assessments

  1. The Government publishes statutory guidance for the Care and Support Act 2014, referred below. We expect councils to follow this.
  2. Where a council arranges care and support to meet a person’s needs, it may charge the adult. It must not charge more than the cost that it incurs in meeting their needs.
  3. Where a council has decided to charge, it must carry out a financial assessment of what the person can afford to pay and, once complete, it must give a written record of that assessment to the person.
  4. In some circumstances, a council may choose to treat a person as if a financial assessment had been carried out. To do so, the council must be satisfied on the evidence that the person can afford, and will continue to be able to afford, any charges due. This is known as a ‘light-touch’ financial assessment.
  5. Where a person lacks capacity, they may still be assessed as being able to contribute towards the cost of their care. Where possible, councils should work with someone who has the legal authority to make financial decisions on behalf of a person who lacks capacity.
  6. In assessing what a person can afford to contribute a council must apply the upper and lower capital limits. The upper capital limit is currently set at £23,250 and the lower capital limit at £14,250. The council must disregard any capital below the lower capital limit.
  7. Councils may take most of the benefits people receive into account. However, they need to ensure that in addition to the minimum guaranteed income or personal expenses allowance, people retain enough of their benefits to pay for things to meet those needs not being met by the council.
  8. Councils should also take account of any disability related expenditure (“DRE”). The statutory guidance lists included items but this is not exhaustive. A council should include any reasonable additional costs directly related to a person’s disability.

What happened

  1. Miss Y lives in supported living accommodation. Her care plan of August 2020 says she receives 9 hours’ care support weekly. Her mother, Mrs X, has power of attorney for her health, welfare and finances.
  2. In November 2020 the Council tried to arrange to carry out a financial assessment for Miss Y by phone. However, Mrs X cancelled this appointment and suggested she would complete the assessment online on Miss Y’s behalf.
  3. Mrs X says she completed this and it showed Ms Y would pay no contribution.
  4. In January 2021 the Council followed up with Mrs X by phone who then explained she could not access relevant paperwork due to COVID-19 restrictions. The Council says it offered to carry out a light touch assessment based on Miss Y’s benefit entitlement and Mrs X could provide evidence of expenses later. The Council followed this up by email on the same date. This confirmed the Council had completed a light touch assessment based on benefit figures and this did not take into account household costs. Miss Y would have to contribute towards her care and it would review her finances upon receipt of additional information.
  5. On 16 January 2021 the Council sent Mrs X the outcome of its assessment in writing, with Miss Y paying a contribution towards her care. The assessment showed:
    • Miss Y had capital savings below the threshold
    • Miss Y received income from benefits
    • The Council took into account the minimum income guarantee, rent payments and payment for a community alarm.
  6. The letter said Mrs X should contact the Council if any information was inaccurate or if anything changed.
  7. The Council says it did not hear further from Mrs X regarding Miss Y’s expenses and so it called her on 26 March but found she was away. The Council says it tried contacting her again between May and July. It also tried contacting Miss Y.
  8. On 22 July the Council emailed Mrs X because a debt for Miss Y’s unpaid care contributions was building up.
  9. Mrs X then told the Council she was still awaiting a response to her email of 10 May. Further, that the Council had contacted Miss Y, causing her distress, despite Mrs X asking that it not do so. She enclosed her email of 10 May which explained she was unhappy with the outcome of the light touch assessment. She queried the charges and suggested the Council had charged a higher rate than the care provider. She also asked the Council to contact her directly, rather than Miss Y.
  10. The Council told the Ombudsman it had no record of receiving the email of 10 May prior to this.
  11. In reply to Mrs X it asked for a copy of her power of attorney documents so that it could update Miss Y’s contact information. Mrs X then sent these.
  12. The Council then arranged a telephone assessment with Mrs X to take place on 5 August. On this date she provided two bank statements and the Council completed a financial assessment form. I note the form only refers to the community alarm as a DRE.
  13. The Council has provided its records of the call with Mrs X. This shows Mrs X was unhappy the Council would not take into account taxi, phone, and internet costs. The Council said if these were DRE and Mrs X could provide proof it would consider these, however Mrs X said she did not have any proof. The Council confirmed Miss Y’s contribution, revised slightly lower than before. Mrs X was unhappy there was any charge at all and wanted to appeal the outcome. The Council then referred her to its complaints process.
  14. On 10 August the Council sent Mrs X the written outcome of its financial assessment.
  15. On 27 August Mrs X complained the Council’s financial assessment did not take into account:
    • Miss Y’s carer support hours varied over the period meaning Miss Y paid for more care than she received. She gave three examples where the hours fell short of the planned 9 hours’ per week.
    • Miss Y paid £250 monthly to cover joint household expenses;
    • Carer travel costs were likely to increase;
    • The cost of essential landline/broadband;
    • 50% of capital in the bank account belonged to a third party;
    • The remaining sum was inadequate to cover £250 per month, three hygienist visits per annum, optician, mobile phone, personal needs, clothes, shoes and a myriad of other expenses like social activities and holidays.
  16. Mrs X asked the Council to write off the balance.
  17. The Council acknowledged the complaint and said it would aim to reply by 24 September.
  18. On 17 September the Council spoke to Mrs X and agreed an extension to respond by 15 October.
  19. On 15 October the Council updated Mrs X that due to an unexpected absence it would no reply by 22 October.
  20. The Council responded to the complaint on 21 October. It explained:
    • It paid £149.85 per week for daytime support and Miss Y contributed £109.92 per week towards this. If the weekly service was not provided in whole or part Miss Y would be due a credit adjustment. It asked Mrs X to let it know the dates where services where not provided so that it could investigate with the supported living placement.
    • It would consider any additional expenses; Mrs X should provide evidence or receipts;
    • Miss Y’s capital was below the threshold and so did not impact its assessment but upon Mrs X providing a recent bank statement it would correct its records;
    • It could not write off the balance but would like to arrange a full review with Mrs X of expenses and dates support not provided, if she agreed.
    • If it did not hear from Mrs X by 4 November it would close the complaint.
  21. On 29 November Mrs X emailed the Council unhappy with its complaint response and agreeing to a review.
  22. The Council told Mrs X it had closed the complaint on 4 November, its findings remained the same and she could contact the Ombudsman. However, it would like to carry out a review and so asked Mrs X to provide evidence of expenses and the dates care was not provided.
  23. There are no records to suggest Mrs X contacted the Council again.
  24. In Mrs X’s complaint to the Ombudsman she said she wanted the Council to gather information direct from the care provider as she had concerns making contact herself may jeopardise her daughter’s care. She also noted the Council had not charged Miss Y for care previously and the assessment was unexpected.
  25. In response to enquiries the Council provided records of its communications with Mrs X, referred to above. It explained the care provider invoiced the Council for care services and its records suggested services continued. As Mrs X disagreed it asked for further details from her to raise with the care provider. However, following Mrs X’s complaint to the Ombudsman it could now see she would prefer the Council to liaise with the care provider directly. Now that the Council was aware of this preference it would obtain information from the provider and review the charges raised in light of their response.
  26. In comments on a draft of this decision Mrs X:
    • Commented on some factual inaccuracies (now corrected);
    • Said the Council knew she could not access relevant paperwork further to its light touch assessment, due to the COVID-19 restrictions.
    • Said she gave the Council examples of instances where 9 hours’ weekly support was not provided. However, the Council did not act on this.
    • Maintained it was not up to her to police the contract between the Council and care provider; the Council should have taken action to ensure it was providing the hours’ agreed once she said that it was not.
    • Provided the email address to which she sent correspondence on 10 May that was not responded to.
  27. In further comments the Council said:
    • It has now found the email Mrs X sent on 10 May. The email went to a generic mailbox managed on a duty basis by administrative staff. The staff member responsible did not forward the email to the officer managing Mrs X’s case and so it was not seen or stored on her file. The staff member has since left the Council and so it cannot explain why this isolated event occurred. It is sorry Mrs X did not receive a response to this email. It is also unfortunate its attempts to contact her by phone thereafter were not successful.

Findings

  1. The Council is entitled to carry out a light touch financial assessment in accordance with the Care Act statutory guidance. However, the Council did not make clear Mrs X could ask for a full assessment if she was unhappy with the outcome. This is fault. I do not consider this caused Mrs X any injustice as she did not contact the Council immediately following the assessment outcome in any event. However, I will recommend the Council amend its standard letters to prevent injustice to others in future.
  2. Upon further contact from Mrs X the Council carried out a full financial assessment. It decided on Miss Y’s care charges based on the information provided and in line with the statutory guidance. It is usual practice for a council to ask the service user or their representative to provide information and evidence in support; the Council was not at fault for doing so. In the absence of supporting evidence the Council decided on the information available. There is no evidence that suggests the Council treated Miss Y less favourably than others or that it placed Miss Y at a disadvantage due to a protected characteristic. I find no fault in the Council’s decision making and no evidence of discrimination.
  3. If Mrs X had asked the Council to gather the evidence itself, giving reasons why she could not do so, I would expect the Council to consider this request and decide whether to take action. However, there is no evidence Mrs X made such a request. I cannot find the Council at fault when it was unaware of any problem to resolve. I also note the Council has since agreed to contact the care provider directly, having now been made aware of Mrs X’s objections. I am satisfied with its proposed action.
  4. I acknowledge Mrs X gave the Council some examples where the care hours provided to Miss Y fell short. However, I consider it clear the Council wanted full details and these were not forthcoming.
  5. I note Mrs X queries the Council’s decision to charge Miss Y after so many years without charges. However, the Council has followed a proper decision making process in deciding to charge. And, in respect of any previous decision not to charge, Miss Y would have benefited from any fault and so I do not intend to investigate this.
  6. The Council has accepted it overlooked Mrs X’s email of 10 May however, I am satisfied it would have corrected this oversight had it spoken to Mrs X as planned between May and July. I therefore do not consider this reaches the Ombudsman’s threshold for a finding of fault.

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Agreed action

  1. To remedy the injustice set out above I recommend the Council carry out the following actions within three months of the date of my decision:
    • Amend its standard letters to ensure it notifies service users of the right to request a full financial assessment should they be unhappy with the outcome of any light touch assessment.
  2. The Council has accepted my recommendations.

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Final decision

  1. I find no fault in the Council’s decision making on Miss Y’s care charges however I find fault in its communications. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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