Summary: Mr X complained about how the Council managed the finances related to his son, Mr Y’s, social care needs. There was no fault in how the Council assessed Mr Y’s contribution to his care or managed his direct payment. There was fault in how the Council explained a change in 2019 and how it failed to respond to Mr X’s stage two complaint. This caused Mr X avoidable frustration, for which the Council agreed to apologise.

The complaint

1. Mr X complained on behalf of his son, Mr Y, about how the Council paid his son’s direct payment and calculated Mr Y’s contributions to his care costs between 2017 and 2019. He said that despite agreeing to pay for Mr Y to attend a community group, it recouped this cost by charging him more than this towards his other care. He also said the Council failed to provide him with information or explain its decisions, despite Mr X asking the Council several times.
2. As a result, Mr X said Mr Y had to pay for the costs of attending the community group himself for several years. Mr X wanted the Council to refund the amount it wrongly charged his son.
3. Mr X also complained the Council failed to respond to his second complaint letter in December 2021, causing him avoidable time and trouble chasing his complaint.

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The Ombudsman’s role and powers

4. 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)
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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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

8. I considered:
• the information Mr X provided and discussed the complaint with him;
• the Council’s comments on the complaint and the supporting information in provided (including financial assessments and Mr Y’s care records); and
• relevant law and guidance.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Charging for care and support

10. 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)
11. 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.
12. 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.
13. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs.

What happened

Background

14. Mr X’s son, Mr Y, has long term care needs. Before 2017, the Council directly arranged and funded Mr Y’s care and support. At the time, Mr Y’s income consisted of Income Support and Disability Living Allowance and the Council assessed he should pay less than £5 a week towards his care.

Charges from 2017

15. In 2017, Mr Y was due to move into shared, supported living accommodation. As part of a review of his needs, the Council agreed Mr Y should attend a local community group one day a week, in addition to the care he received in his supported housing. The Council said it could not fund this attendance directly, so the Council agreed to make a direct payment of £50 a week to pay for Mr Y’s attendance. According to the Council’s records, this direct payment started in mid-2017. Mr Y also paid privately to attend the community group for a second day each week.
16. Around the same time, the Council reassessed Mr Y’s financial contribution towards his care. It wrote to Mr X, who manages Mr Y’s finances, and reassessed Mr Y’s contribution. At this point, Mr Y’s benefits had changed to Employment and Support Allowance and Personal Independence Payment, and his income had increased significantly. As a result of this, the Council decided Mr X needed to pay over £85 a week towards his care from September 2017.
17. Since Mr Y received two types of care, the Council invoiced Mr Y for his contribution directly and credited this towards the costs of the care it directly commissioned for him. It made the direct payment of £50 a week to a pre-paid card managed by Mr X.
18. The Council carried out automatic reviews of Mr Y’s contribution in the Aprils of 2018, 2019 and 2020. These reviews were based on the standard increases in benefit rates and financial assessment rules. On each occasion, Mr Y’s contribution increased slightly based on these yearly increases.
19. In late 2019, the Council changed how it accounted for Mr Y’s contribution. Instead of invoicing Mr Y for his full contribution and making the full direct payment for the community group, it deducted Mr Y’s direct payment from his assessed contribution and invoiced him for the difference.
20. In early 2021, the Council carried out a full review of Mr Y’s contribution. In the financial assessment forms Mr X completed, he included additional Disability Related Expenditure related to a new therapy Mr Y took part in, along with some other expenses. The Council accepted some of these additional costs as DRE and explained that others were normal household-type bills which were included in the standard personal allowance it made under the financial assessment rules.

Mr X’s complaint to the Council

21. Mr X complained to the Council in October 2021 about Mr Y’s contributions, including that the Council had invoiced Mr Y for a contribution of more than his direct payment since 2017.
22. The Council responded to Mr X’s complaint in November 2021. In its response the Council explained the interaction between Mr Y’s direct payment and his contribution, and the changes in how it accounted for this in 2019.
23. Mr X was not happy with the Council’s response, so he asked the Council to consider his complaint at the second stage of its complaints procedure in December 2021. However, there is no evidence the Council responded further to Mr X’s complaint.
24. Mr X complained to the Ombudsman in early 2022.

My findings

25. We cannot generally consider complaints where someone takes more than 12 months to complain to us after they become aware they have reasons to complain. In this case, because of his particular needs, Mr Y is not aware of the problems Mr X says exist with his direct payment and contributions. Therefore, I have considered how the Council calculated and managed Mr Y’s direct payment since 2017.

Financial reassessment in 2017

26. In 2017, the Council reviewed Mr Y’s care needs and agreed to fund his attendance at a community group through a direct payment. At the same time, it also reassessed his financial contribution. It was appropriate to reassess Mr Y’s contribution at that time, given the significant changes in his care and the length of time since the last financial assessment.
27. Based on a change in his circumstances, which only became apparent during the reassessment, Mr Y’s contribution increased. The Council sent a copy of its financial assessment to Mr X at the time it carried this out. Having considered the assessment the Council carried out at that time, there is no evidence of fault in how the Council carried out that assessment.
28. The costs of someone’s care needs, including any direct payments a council agrees to make to meet these needs are assessed and calculated separately, and under different rules, to any contribution they need to make towards the cost of that care. Although there was both an increase in Mr Y’s package of care and his assessed contribution at the same time, the evidence shows the increase in Mr Y’s contribution was based solely on his income at the time, not on the care he needed. The fact that his package of care and contribution increased at the same time was, essentially, coincidental.

Uprating assessments

29. The evidence shows that the annual ‘uprating’ reassessments the Council caried out in 2018, 2019 and 2020 were also carried out properly. The Council had no reason to believe that Mr Y’s circumstances had changed, apart from the annual increases to his benefits. The evidence suggests Mr X was aware of the increased contributions, though it was not clear if the Council sent him formal notifications of those increases. On the balance of probabilities, I am satisfied it was likely the Council did notify Mr X of these increases.

Accounting for Mr Y’s direct payment

30. I accept the Council’s explanation about the changes it made to how it accounted for assessed contributions if someone also received a direct payment. Before the end of 2019, it invoiced for contributions in full and paid the full direct payment. After the change, the Council deducted any direct payment from someone’s contribution and invoiced them for the difference. There was no fault in how the Council decided to change the way it managed such circumstances.
31. However, there is no evidence the Council clearly made Mr X aware of this change in process at the time it made it. This led to some avoidable confusion for Mr X, who had to ask the Council to clarify this, shortly after it made the change. The evidence shows the Council explained its new approach to Mr X when he first asked and several more times over the following year.
32. Although there was likely some fault in how the Council communicated this change, I am satisfied that the Council’s subsequent explanations and apologies were an adequate remedy for the avoidable confusion Mr X experienced at first.

2021 financial assessment

33. When Mr X told the Council Mr Y’s DRE had increased in 2021, the Council reassessed Mr Y’s contribution. It accepted some of Mr Y’s additional DRE and adjusted his contribution accordingly. There is no evidence of fault in how the Council carried out that assessment.

Council’s handling of Mr X’s complaint

34. I am satisfied the Council’s first response to Mr X’s complaint provided an accurate and sufficient explanation about how it had assessed and accounted for Mr X’s direct payment and assessed contribution.
35. The Council also decided to review Mr Y’s financial assessments since 2017 to make a further allowance for the fees Mr Y paid privately to attend the community group a second day each week. It decided to treat this as DRE for the whole period and refunded Mr Y for the excess contributions it decided he had paid. Had there been any fault in how the Council originally assessed Mr Y’s DRE, I am satisfied this would be a suitable remedy.
36. However, there is no evidence the Council responded to Mr X’s request to escalate his complaint to stage two of the Council’s complaints process. This was fault which caused him some avoidable frustration. However, this did not cause a significant delay to Mr X’s complaint to the Ombudsman and had no impact on Mr Y.

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Agreed action

37. Within one month of my final decision, the Council will apologise to Mr X for not responding to his stage two complaint.
38. Within three months of my final decision, the Council will review how it records and monitors complaints to ensure that it properly records and responds to all requests for escalations to the second stage of its complaints procedure.

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Final decision

39. I have completed my investigation. There was no fault in how the Council assessed Mr Y’s contribution to his care or managed his direct payment. There was fault in how the Council explained a change in 2019 and how it failed to respond to Mr X’s stage two complaint. This caused Mr X avoidable frustration, for which it agreed to apologise.

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Investigator's decision on behalf of the Ombudsman