Summary: Ms X complained the Council is pursuing a debt for adult social care fees which she disputes. Ms X said she made payments, but the Council has not credited the payments to her account. Ms X said this has affected her mental health. The Council was not at fault.

The complaint

1. Ms X complained the Council is pursuing a debt for adult social care fees which she disputes. Ms X said she made payments, but the Council has not credited the payments to her account. Ms X said this has affected her mental health.

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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 a Council’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)
4. 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)
5. I have exercised discretion to consider events in this case back to January 2020. I reference events prior to this for context in this matter. I have seen Ms X complained within the last 12 months. The complaint is about lack of allocation of payments. The issues started to escalate when the Council increased Ms X’s assessed contributions in January 2020.

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How I considered this complaint

6. I read Ms X’s complaint and spoke to her about it on the phone.
7. I considered information provided by Ms X and the Council.
8. Ms 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

Background information

9. 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)
10. 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.
11. 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)
12. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
13. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

14. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.

What happened

15. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
16. Ms X has an ongoing package of domiciliary care. She is supported by care staff to meet her assessed needs. The Council has assessed Ms X’s finances and charges her an assessed contribution to her care each week. Ms X had a small outstanding debt from not paying invoices dating back to 2018.
17. Ms X’s assessed charge increased to £69.89 per week, from £11.14, at the end of January 2022. Ms X disputed the new amount with the Council. The Council explained to Ms X her rent had decreased and she started to receive personal independence payments (PIP) and this impacted her contributions.
18. Ms X continued to challenge the Council about how much she needed to pay and made some payments towards he invoices.
19. The Council completed a new financial assessment in March 2021. The contribution remained at £69.89 per week.
20. The Council spoke to Ms X in April 2021 and explained she owed the Council approximately two thousand pounds. Ms X contacted the Council and explained she had made payments, but they had not been allocated. The Council explained the payments had been allocated to older outstanding invoices. The Council provided an updated statement to Ms X to confirm the amount she owed.
21. Ms X did not make regular payments. The Council offered to support her with payment plans but Ms X declined. The Council confirmed in May 2021 it had no concerns about Ms X’s capacity to make decisions about her finances.
22. Ms X appealed against the amount the Council charged for her contributions. She said she could not afford the amount as she needed to give money to her daughter and had other bills. The Council responded in September 2021. It explained the income it considered and allowances it made. The Council said it would not consider any unsecured debt. It continued it would not make an allowance for cash payments to her daughter. The Council confirmed the weekly contribution was correct.
23. The Council advised Ms X she owed nearly four thousand pounds at the end of October 2021. Ms X discussed the issue with the Council and agreed to a payment plan paying an additional one hundred pounds per month.
24. Ms X stopped making additional payments in February 2022.
25. The Council completed a new financial assessment in April 2022. The contribution remained at £69.89 per week.
26. Ms X contacted the Council in July 2022. She expressed concerns about other debts. The Council completed a light touch review and considered some of the payments Ms X needed to make. The revised contribution was £49.48 per week. The Council informed Ms X her debt was five and a half thousand pounds and it needed to set up a payment plan. The Council noted Ms X was making payments to her daughter, who was in financial difficulty.
27. The Council completed another financial assessment in August 2022. This assessment took into account money Ms X paid to her daughter, as a temporary measure, until her benefits were restored. The Council confirmed this amount would apply for three months.
28. The Council completed another financial assessment in February 2023. The assessment detailed Ms X was no longer giving money to her daughter. The revised weekly contribution was £81.98.
29. Ms X spoke to the Council in March 2023. She said she had made payments the Council had not allocated to her case. The Council advised Ms X to provide evidence and it would follow this up. I have not seen evidence Ms X sent this evidence to the Council.
30. Ms X complained to the Council at the end of March 2023. The Council responded to Ms X’s complaint a week later. The response explained what it considered her necessary expenditure was and the income she received. It explained the assessed contributions were correct.
31. Ms X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Ms X would like the Council to write off the amount she owed.
32. In response to my enquiries the Council provided details of Ms X’s invoices, statements and details of the payments she made. The Council confirmed Ms X owed nearly seven thousand pounds and would take legal action to recover this amount. The Council agreed to delay any action until after the Ombudsman investigation.

My findings

33. Ms X disagreed with the amount the Council charged her contributions to her care. The Ombudsman is not an appeal body. We cannot question a council’s decisions if there is no fault in the way the decisions are reached.
34. The Council is entitled to charge for care and support. Ms X is unhappy the Council has not taken into account all her regular expenditure and outgoings when calculating what she could afford to pay, but the Council is not required to do so. It calculated Miss X’s contribution to her care charges in line with the relevant statutory guidance, regulations and the Council’s own policy. The Council has also temporarily allowed additional allowances to accommodate Ms X’s family situation. It considered her disability related expenditure and left Miss X with an amount above the minimum income guarantee level set by the Government. There was no fault in the way it carried out the financial assessments.
35. The Council evidenced Ms X’s debt has been accruing since 2018, although this increased significantly when Ms X stopped making regular payments.
36. The invoices are in accordance with the assessed contributions. Ms X’s complaint is the Council has not allocated payments she made to her account. She provided bank statements dating back to 2020.
37. I have considered all statements submitted and cross referenced these to the statements the Council provided, as well as the Council’s ongoing record.
38. The Council received all payments detailed on Ms X’s bank statements. The Council has then allocated all the payments received to Ms X’s outstanding balance. There are no payments unaccounted for. There is no fault on behalf of the Council.

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Final decision

39. I have completed my investigation. I have not found fault by the Council.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman