Summary: We stopped investigating a complaint about the Council’s social care charging policy because it is reasonable for Mr X to wait for the Council to review the policy.

The complaint

1. Mr X, a representative from the Royal National Institute of Blind People (RNIB) complains for Ms Y that the Council’s charging policy for adult social care was discriminatory.
2. Mr X said this caused Ms Y and others a financial loss. He wants the Council to review and revise its charging policy and reimburse any overpayments to Mr Y and others similarly affected.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but we must use public money carefully. We may decide not to continue with an investigation if we decide it would be reasonable for the person to ask for an organisation review or appeal. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

4. I considered the complaint to us, the Council’s response to the complaint and its response to my enquiries
5. Mr 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

Relevant law, guidance and policy

6. Section 14 of the Care Act 2014 allows councils to charge people for care and support. They calculate the charge applying regulations and having regard to relevant parts of Care and Support Statutory Guidance (CSSG). The regulations and CSSG allow councils some discretion about whether to include certain disability benefits in the calculation of the charge and this results in some councils being more generous than others.
7. In 2020, the High Court found Norfolk County Council’s charging policy was discriminatory and unlawful. The Court said there was an unjustified difference in treatment between two groups:
• adults who were severely disabled who had no realistic access to earnings which are disregarded in financial assessments and
• everyone else being charged for their care.

(SH v Norfolk County Council [2020] EWHC 3426)

8. The Council’s charging policy is similar to Norfolk’s. At the time of writing this draft statement, the Council has not reviewed its policy to take into account the findings of the High Court in the Norfolk case.

What happened

9. Ms Y is blind and gets council-funded care and support. In April 2021, the Council carried out a financial assessment to determine her personal charge towards the cost of her care.
10. Ms Y receives disability benefits at the highest rate because she is classed as severely disabled. The Council carried out a financial assessment and took into account all her disability benefits leaving her with the minimum income guarantee buffer (MIG). The MIG is the lowest legal amount that the government says people need to live off. Mr X complained on Ms Y’s behalf that the Council’s treatment of her and others in the same position, was discriminatory in the same way as in the Norfolk case I have referred to in paragraph seven.
11. Mr X complained to the Council in March 2022. The Council responded with a brief letter in April 2022 saying it had reviewed the Norfolk case and considered its policy was in line with the law and guidance and so did not need amending.
12. Mr X complained to us in June. We asked the Council whether it had responded to the complaint. The Council said it had treated Mr X’s complaint to is as an ‘enquiry’ but agreed to provide a response under its complaints’ procedure.
13. The Council responded to the complaint in August saying it would carry out a review of its charging policy. The Council said it would then complete a consultation with the public at the end of 2022. The Council said it would:
• Review the policy considering Mr X’s comments, including the MIG
• Seek legal advice to ensure the policy was compliant with the law
• Inform Mr X and Ms Y once the review was completed and the public consultation open so they had the opportunity to consider any proposed amendments and/or provide feedback.
14. Responding to my enquiries, the Council said potential changes to the charging policy would be going to the Council’s cabinet meeting at the end of November 2022 with a request to start a public consultation on those changes. Consultation was likely to start soon after and to close in early January 2023.

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Final decision

15. I stopped investigating this complaint because it is reasonable to await the outcome of the public consultation/ review of charging policy. We cannot predict the outcome of the consultation, but it may lead to members approving changes to the current charging policy which will address Mr X’s concerns. Once this process is complete, Mr X and Ms Y can make a fresh complaint to the Council if they consider there is any remaining fault leading to injustice which requires a remedy. If they are unhappy with the Council’s response, they can refer their complaint to us again.

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Investigator's decision on behalf of the Ombudsman