Summary: Mrs X complains about the Council’s financial assessment leading to her son, Mr Y, being charged the maximum contribution for his care costs. The Council has accepted it was at fault in the way it completed Mr Y’s financial assessment and has already taken steps to rectify this. The Council has now also agreed to apologise and make a payment to Mrs X as it took too long to respond to her complaint. The Council will also complete the further training for staff on Disability-Related Expenditure and issue a reminder on the importance of responding to complaints within published timescales.

The complaint

1. Mrs X complains about the Council’s financial assessment leading to her son, Mr Y, being charged the maximum contribution for his care costs. Mrs X says the Council has incorrectly disallowed costs Mr Y incurs due to his disability when calculating his contribution. Mrs X also feels the Council has not taken her complaints about this seriously, has taken too long to respond and not taken all the relevant information into account. Mrs X says this has caused uncertainty and distress for her and Mr Y.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have considered the information Mrs X and the Council have provided in relation to this complaint.
5. Mrs X 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

Charging for social care services

6. 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)

Financial assessment

7. 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. The Council should ensure that the information is provided in a manner that the person can easily understand in line with its duties on providing information and advice.
8. 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 government and reviewed each year. A council can allow people to keep more than the MIG. (Care Act 2014)

Disability Related Expenditure

9. 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.
10. The guidance also says that some expenditure may be allowed based on a person’s liability and circumstances to cover housing costs. These may also be determined through discussion with a person and include consideration of average levels for household types. Evidence of expenditure may be requested to verify requests for example receipts, bank statements or invoices where involving exceptionally high values, unusual types of expense. Failure to supply evidence will result in those expenses being excluded from the calculations.

What happened

11. Mr Y is disabled and was attending a residential education placement. The Council started a review of his support plan when he left the placement and moved back in with his parents. Mr Y then secured a place in supported accommodation where he receives help with living independently.
12. In early August 2021, Mrs X provided the Council with information about Mr Y’s Disability-Related Expenditure (DRE) and asked for this to be taken into account when assessing his contribution to his care costs.
13. The Council wrote to Mr Y in late August 2021 to advise it was allowing some but not all the costs Mrs X said he incurred. The Council calculated that Mr Y’s contribution to care should be £126.42 from 14 March 2021 and should rise slightly in line with increases in Mr Y’s benefit payments in April 2021.
14. Mrs X was unhappy with the Council’s assessment and submitted a complaint on 21 October 2021. She said Mr Y was unable to work to supplement his income and needed the items she had described because of his visual impairment and other disabilities. She asked the Council to reconsider and reduce the weekly contribution Mr Y had to pay to £83.03, so he had some spare funds to afford holidays and socialising.
15. The Council responded to Mrs X complaint on 19 January 2022. It apologised for the delay in responding and explained it could not include all the items Mrs X had applied for as Mr Y’s DRE. It maintained its position on the amount of contribution Mr Y should pay.
16. Mrs X came to us shortly afterwards as she remained dissatisfied with the Council’s response.

Was there fault causing injustice?

17. In response to our enquiries, the Council has said it has reconsidered its financial assessment in Mr Y’s case. It accepts it made errors when considering DRE amounts and has completed a further review of its original financial assessment.
18. The Council has concluded that Mr Y’s weekly contribution should be reduced to £81.95 from 14 March 2021, £83.40 from 11 April 2021 and £92.35 from 10 April 2022. It has calculated this represents a credit of £3,135 payable back to Mr Y, which it has applied as a credit to his account.
19. I commend the Council’s early action to review and seek to remedy the faults it identified in its handling of Mr Y’s case. I am also pleased to see the Council has said it will arrange further training for all relevant Officers to ensure DRE is assessed correctly and fairly applied in future financial assessments.
20. The Council’s action above goes a significant way towards putting Mr Y back in the position he would have been but for its fault. However, this action does not address any of the injustice Mrs X has experienced in bringing her concerns to the Council’s and our attention.
21. The Council’s complaint policy says it will respond to complaints in 20 working days and will advise complainants if a response will be delayed. Mrs X waited 61 working days to receive the Council’s response to her complaint about its financial assessment. The Council has not provided evidence it told Mrs X its response was going to be late. This was fault and I can understand how Mrs X could have felt the Council was not taking her concerns seriously.
22. I have made further recommendations below to remedy the injustice caused by the Council’s delay and in recognition that Mr Y was unlikely to have received the remedy above if Mrs X had not brought her complaint to our attention.

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Recommended action

23. Within one month of my final decision, the Council has agreed to apologise and make a payment of £100 to Mrs X for the time and trouble she experienced in making her complaint.
24. Within two months of my final decision, the Council agrees to:

• ensure the expert training it intends to provide to all DRE approvers has been completed; and,
• issue a reminder to all relevant staff about the importance of responding to complaints within the 20 working day timescale or providing updates to complainants where a response is going to take longer.

25. The Council should provide us with evidence it has complied with the above actions.

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Final decision

26. I have completed my investigation and found fault with the Council. This fault has caused Mr Y injustice, which the Council has already acted to remedy. The Council has now agreed to remedy the injustice caused to Mrs X by its actions.

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Investigator's decision on behalf of the Ombudsman