Summary: There was no fault the Council asked Mrs X to contribute to her care costs. There was fault in how it involved Mrs X in a new financial assessment and when it told her she would be liable for charges. This caused Mrs X an injustice because she was liable for charges she did not know about, and this caused avoidable distress. The Council have already taken steps to prevent a reoccurrence of the fault and offered Mrs X a personal remedy during our involvement. It has now agreed a further payment to Mrs X to fully recognise this injustice.

The complaint

1. Mrs X said the Council were wrong to charge her for care support when her care provider recently changed, without telling her she would have to pay towards it. Mrs X said by the time the Council told her she had to contribute; the care had already started.
2. Mrs X said this caused her unnecessary stress and anxiety.

Back to top

The Ombudsman’s role and powers

3. 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)
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)

Back to top

How I considered this complaint

5. I have considered the complaint and discussed it with Mrs X.
6. I have looked at the documents the Council provided in response to my enquiries.
7. I have considered relevant legislation.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

Charging (non residential)

9. The Care and support statutory guidance (‘the guidance’) sets out principles for charging for care and support. One of these principles is that the approach to charging should be clear and transparent so people know what they will be charged.
10. The guidance also says that local authorities should make sure there is enough information and advice available to make sure the person or their representative can understand any contributions it asks them to make.

Charging for social care services: the power to charge

11. 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 comply with the Care Act statutory guidance. (Care Act 2014, section 14 and 17)

How to assess; Thresholds

12. 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.
13. 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)
14. In some circumstances, a local authority may choose to treat a person as if it had carried out a financial assessment. To do this, the local authority must be satisfied by evidence the person provides that they can afford, and will continue to be able to afford, any charges due. This is known as a ‘light-touch’ financial assessment. (Care and support statutory guidance section 8.22)

Disability Related Expenditure

15. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. A local authority 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.
16. 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, it may consider above average heating costs as part of this.

What happened

17. The Council provided Mrs X with domiciliary care for several years. In 2020, it carried out a financial assessment to determine whether Mrs X should pay toward the costs of this care. At that point the Council assessed she did not need to make a financial contribution.
18. The Council carried out two further annual reassessments in April 2021 and 2022 and assessed Mrs X would not have to pay a contribution for her care costs.
19. I have seen the reassessment letters the Council sent to Mrs X. The letters explain the weekly cost of Mrs X’s care, with a list of her income and living costs. These include her rent and Council tax. The letters highlight it had credited Mrs X with a weekly allowance of £17 toward DRE. The letter has a note explaining that DRE is the standard amount the Council have set aside as extra expenditure incurred by disability related costs for care needs.
20. Mrs X’s existing care and support plan finished in late September 2022. Mrs X told me a new care provider started delivering her care services from mid-November onwards. The Council told me because there was a break in Mrs X’s care, this triggered a new financial assessment, which it said was a light touch assessment.
21. In December, the Council wrote to Mrs X telling her it had now assessed she would need to contribute toward her care costs and this would be £47.89 per week. The letter said this charge would be backdated to when her new care package started in November.
22. The letter also said because it carried out the assessment based on information held by the Department of Work and Pensions, there was no need for the Council to have contacted Mrs X.
23. Mrs X contacted the Council in mid-December when she said she first realised the Council were asking her to pay a contribution toward her care. She then had a discussion with a Council officer about her financial assessment. During this call, Mrs X cancelled the care package because she said she could not afford it.
24. The Council then wrote to Mrs X with details of their discussion and a breakdown of the costs she had highlighted to the Council. The letter set out how the Council came to the figure including the fact Mrs X was credited with an amount of money for DRE and set out the MIG that it excluded from Mrs X’s income.
25. Mrs X did not highlight anything in this telephone call which gave the Council reason to believe Mrs X had any specific DRE.
26. In January, Mrs X made a formal complaint, saying she could not pay her care costs and believed her circumstances had not changed from when the Council had earlier said she did not need to pay a contribution. The Council replied in February setting out how it had gone about the assessment in Mrs X’s case and referred her to the Ombudsman.
27. In March 2023, Mrs X recontacted the Council querying the charges. In that call she also told the Council she had a large utility bill and was struggling to pay her outstanding care costs.
28. The Council responded by re issuing the letter which explained how her financial assessment was worked out and arranging a further call with her. Later that month, it contacted Mrs X and spoke to her on the telephone. The case notes show Mrs X asked for the Council to complete another financial assessment.
29. In late April, a finance officer visited Mrs X and completed another assessment. They wrote to Mrs X and changed the weekly amount it assessed she was due to pay for her care. It reduced the amount to £42.49, revised because of a change in the Council tax contribution Mrs X was paying.
30. The letter also said the officer had discussed additional allowances Mrs X may be eligible for under ‘Individual Disability Related Expenses’. The letter also said the finance officer would arrange for someone from the Council to contact Mrs X about what these expenses may include.
31. The Council visited Mrs X in July. It said it asked her to provide it with further documentation for it to assess whether she is entitled to other allowances under the category of DRE.
32. In response to my enquiries, the Council accepted it was at fault because it did not tell Mrs X that it would carry out a financial assessment when her care provider changed in November. It accepted this would mean she would not have known she may be liable for charges.
33. It said because of this it would waive Mrs X’s outstanding costs it had charged her for care between November until the point where Mrs X cancelled her care provision.
34. The Council also explained it had changed its process to ensure it properly informed people before they became affected by charges where it carried out a new financial assessment.

My findings

35. It is not the Ombudsman’s role to decide if a person has social care needs, or their entitlement to receive services from the Council. The Ombudsman’s role is to establish if the Council assessed a person’s needs properly and acted in accordance with the law.
36. I have not seen any evidence of fault in how the Council assessed Mrs X’s care contribution. It previously made her aware her financial position was subject to regular assessment. It also explained she was receiving a disability related expense allowance and provided further guidance about this in her annual reassessment letters.
37. A council can choose to charge for non-residential care following a person’s needs assessment. However, the guidance says it should take steps to make sure the person concerned can pay the charges.
38. The Council have accepted it has acted with fault here. That fault caused Mrs X an injustice because she could not make an informed choice about her care before it was due to start and was then faced with a bill she did not expect.
39. The Council have agreed to waive these costs in so far as they affected Mrs X and have also provided me with evidence about the steps it has taken to prevent a reoccurrence. This is welcome.
40. The Council has also offered an apology for Mrs X, for the avoidable distress it has caused. This too is welcome and appropriate.
41. However, I find it could have apologised and waived the charge much sooner during the complaints process and thus avoid Mrs X having to complain to the Ombudsman. This delay left Mrs X with avoidable uncertainty and caused her an injustice. The Council have agreed to pay Mrs X a symbolic payment to fully recognise her injustice.

Back to top

Agreed action

42. Within one month of the date of my decision, the Council should pay Mrs X £100 to recognise her avoidable distress.
43. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

44. There was fault.

Back to top

Investigator's decision on behalf of the Ombudsman