Summary: Mrs X complained that the Council did not allow for Mr Y’s contribution to household costs in his financial assessment and did not tell her that he would have to contribute towards his care. She says this led to Mr Y having a large debt with the Council and caused significant stress to the whole family. We find the Council was at fault in changing its approach to this without explanation. We recommended the Council apologise, pay a sum to recognise the impact of this, and review how it will ensure Mr Y can contribute to household costs. It has agreed to do this.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained on behalf of her disabled son, Mr Y, that the Council:
• Did not advise Mrs X, or Mr Y, of new costs for Mr Y’s day care provision, or discuss this with Mrs X when she challenged it.
• Continued to charge Mr Y while reassessing him which put him into considerable debt.
2. Mrs X agrees that Mr Y needs to contribute towards the cost of his care but says the Council has not considered his other living expenses and disability related expenditure (DRE). He has to pay just over £58 a week for just one day at the day centre. No one told them he would have to pay until he received the first bill in June 2021. Dealing with this debt caused significant stress to the whole family. As of December 2021, Mr Y owed £2,000 in charges backdated to April 2021.

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The Ombudsman’s role and powers

3. 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)
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)
5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)

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How I considered this complaint

6. I considered information from both Mrs X and the Council.
7. Mrs X and the Council had an opportunity to comment on my draft decisions. I considered their comments before making a final decision.

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What I found

Background

Charging for social care services: the power to charge

8. 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 places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the 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; DRE

9. Where a council has decided to charge for care, 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 financial resources. A council must treat each person individually. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.
10. 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, 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

11. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. The Care and Support Statutory Guidance sets out a list of examples of such expenditure. It 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

12. Mr Y lived with his parents and was dependent on them to meet his care and support needs. Mr Y had regularly attended day services and respite services for several years. Mrs X helped Mr Y with his finances.
13. In November 2018, Council records note that Mrs X asked the Council if it would allow £50 for board and lodgings in Mr Y’s financial assessment. The benefit and assessments officer’s manager agreed that would be allowed. However, one month later, the Council told her that this would not be allowed unless Mr Y was liable to pay rent or they had a signed tenancy agreement. The Council agreed to send Mr and Mrs X information about what would be allowed in the assessment. A few days later, the Council once again confirmed it would allow £50 a week board and lodgings (household costs). The Council now says this was an error and it should not have allowed the £50 a week. It says this was because the costs should have been allowed for in the other elements of the financial assessment.
14. In March 2020, the Council sent Mr Y’s support plan which Mr Y, supported by his parents, signed and returned in early April. The support plan gives the cost of the day services as £39.14 per session for service A, and £59.13 per session for service B. The Council says this shows Mrs X knew how much it would cost. However, this does not state how much Mr Y would have to pay since that could only be determined by a financial assessment. Prior to this, the Council had allowed £50 for Mr Y to pay towards his household costs.
15. In June 2021, the Council completed financial assessments for both the respite services and the day services, which are charged differently. These show Mr Y was to be charged £106.40 per week for respite, and nothing for the day services. There is no evidence of correspondence advising Mrs X of the assessment outcomes.
16. Towards the end of July 2021, Mrs X telephoned the Council following receipt of an invoice for Mr Y’s contribution to his day care services. Mrs X said he would have to stop going to the services if he had to pay this much.
17. The following week, the social worker called Mrs X. Mrs X said Mr Y had not previously received an invoice for a contribution and he could not afford to pay the bill. Mrs X had contacted the finance team and they were going to review Mr Y’s financial assessment and contribution. Mrs X also said they had cancelled all Mr Y’s transport because of the cost and the family would support Mr Y to travel to and from his day care and respite.
18. Towards the end of October 2021, Mrs X telephoned the Council as they were still waiting for the financial assessment review. She advised that Mr Y was now around £1,000 in debt.
19. One month later, the Council completed a fresh financial assessment. Mr and Mrs X asked the Council to take into account Mr Y’s contribution to the household expenses “board and lodgings” but the Council declined. The Council’s records note a call to Mrs X explaining this. It said Mr Y did not have a legal responsibility for this and therefore it could not be included. It allowed disability related expenditure for clothing and laundry. Mr Y’s contribution was assessed to be £56.29 per week. Mrs X was unhappy with the decision not to include board and lodgings costs and refused to pay the outstanding invoices. Mrs X says that in December, Mr Y was £2000 in debt to the Council relating to charges dating back to April 2021. The Council says it allowed the £50 per week until November 2021.
20. The Council was at fault here. It is not correct that Mr Y’s contribution to household expenses cannot be included; the Council should consider this fully and provide a clear and detailed explanation. To simply say it cannot be included is inadequate. Mr Y is a non dependent; an adult, such as son or daughter, who lives at home but is not a tenant or lodger. His parents are not responsible for supporting him. The Council says it does not assume that parents are responsible for non-dependents and it would consider reasonable housing costs and disability related expenditure. However, the lack of clarity around how the Council dealt with Mr Y’s household contributions caused undue stress, anxiety and uncertainty to Mr and Mrs X.
21. The Council says the £50 weekly household costs allowance continued until November 2021. I saw no evidence the Council communicated or discussed its subsequent change in approach with Mrs X. Following my first draft decision, the Council agreed to pay Mr Y an amount equal to 50% of the £50 allowance from when it was last allowed until my final decision. I understand this should mean the Council will pay Mr Y £25 for each week from November 2021 to the date of my final decision, where he did not receive the £50 allowance. I consider this a fair proposal.
22. Mr Y’s contribution to the household costs should not be limited to disability related expenditure. This only deals with the amount of expenditure which is solely due to his disability. Mr Y should be able to contribute a fair amount to the combined household costs including such costs as rent, utilities (not related to disability), maintenance, and food. The minimum income guarantee (see paragraph 9 above) is intended to be applied after any housing costs (eg rent or mortgage payments) are deducted. Mr Y may not have a legal obligation to pay housing costs, but he should be left with the MIG after any contribution to housing costs. It is for the Council to decide how to do that.

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Agreed action

23. To remedy the injustice identified above, I recommended the Council:
• Apologise to Mr Y and Mrs X in writing, setting out the fault identified above and the actions it will take to address this.
• Pay £25 per week to Mr Y where the £50 allowance for ‘board and lodging’ was not allowed. This applies from the last time it was allowed, to the date of my final decision. The Council may use this to reduce any outstanding debt owed by Mr Y.
• Ensure that Mr Y/Mrs X receive clear information about how Mr Y is expected to make a fair contribution to the household costs.
• Review its communication around charging in this case and ensure staff are clear in future about how it allows for non dependent’s household contributions.
• Ensure the reasons for any charging decisions are clearly recorded.
24. The Council has agreed to complete the first three actions within one month of my final decision and the last two within three months. It should provide us with evidence it has complied with the above actions.

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Final decision

25. I have completed my investigation. When the Council completes the agreed actions, it will remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman