Summary: Ms X on behalf of Ms Y, complained the Council failed to properly complete financial assessments when charging for day centre services and failed explain why charges stayed the same even when the service reduced during the COVID-19 pandemic. Ms X says this caused distress and affected Ms Y’s wellbeing. There was fault in two financial assessments as well as fault in failing to respond to queries and letters. A suitable remedy is agreed.

The complaint

1. Ms X, on behalf of Ms Y, complains the Council failed to properly complete financial assessments when charging for day centre services between September 2020 and April 2022. She also complains that the day centre charges stayed the same even when the service significantly reduced during the COVID-19 pandemic.
2. Ms X says the lack of communication and explanation of the charges, along with demands for payment has affected Ms Y’s wellbeing and caused distress.

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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 significant injustice, or that could cause injustice to others in the future 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)

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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

Charges for care services

6. 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. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.
7. 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)

Disability Related Expenditure

8. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council 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. 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, above average heating costs should be considered.

Key facts

9. Ms Y has been in receipt of adult social care services since October 2011. She attends a day centre run by a charity and so is subject to a financial assessment to determine how much she should pay for these services.
10. The Council completed a financial assessment in April 2021 which calculated Ms Y should make a contribution of £32.35 per week for the care services received. It appears Ms Y accepted this charge and make payments.
11. A further financial assessment was carried out in October 2021 which calculated Ms Y should make a contribution of £71.73. The Council wrote to Ms X and Ms Y on 22 October 2021 about this assessment. It said the weekly charge was a provisional figure from 6 September 2021 and advised that it required evidence in order to verity the assessment. This was evidence to support the charges claimed as DRE. It said this information should be provided within 14 days in order to complete the financial assessment and that failure to do so could result in the full cost of services being charged. There is nothing to indicate the information was provided within 14 days or that that Council took any action when it wasn’t provided.
12. Solicitors acting for Ms Y wrote to the Council on 3 November 2021 querying the assessment. The solicitor queried why the mobility component income had not been disregarded and the amount of DRE included in the assessment. The Council accepts it never responded to this letter because it was misallocated.
13. The Council completed a third financial assessment in April 2022 which calculated Ms Y should make a contribution of £60.50. Again the Council had not disregarded the mobility component income.
14. The information provided shows that the last payment made by Ms Y for the care services received was in October 2020. However, I note that the invoice for the period 7 September 2020 to 24 January 2021 was not sent to Ms Y until March 2021 which I believe was due to issues around the COVID-19 pandemic.
15. A formal complaint was made to the Council on behalf of Ms Y in July 2022. She complained the previous two financial assessments were incorrect and the Council had failed to review the issues raised or adequately explain its calculations. She said that as a result, she had been incorrectly charged for her day centre attendance for the period 7 September 2020 to 17 April 2022.
16. The complaint also raised the issue of the changes in delivery of the day centre services due to the COVID-19 pandemic. She argued that the costs associated with delivery the service via zoom could not be the same as the previous in-person service and so should be reduced.
17. In response, the Council conducted a new financial assessment. It accepted it had failed to disregard the mobility component and said it would now do this. It also said it was waiting for evidence in order to complete the financial assessment and asked for this to be forwarded. The solicitor explained to the Council that Ms X had not kept evidence but had been advised to keep all receipts and invoices from now.
18. The Council sent the adjusted financial assessment on 12 September 2022. Ms Y’s assessed weekly charge had changed to £50.16 for the period 6 September 2021 to 10 April 2022 and then £52.48 per week. The Council included details of the calculation which did not include the DRE included in the October 2021 and April 2022 assessments. The Council said that it would amend and backdate the assessments if evidence of DRE was provided.
19. The solicitor raised issues around transport costs to the day centre as well as asking generally about the charge when the day centre was operating via zoom. The Council advised that transport costs that exceed the mobility allowance could be considered and asked for evidence to show this.
20. The Council provided a stage one complaint response on 20 October 2022. It provided a further explanation of how the assessment had been completed in respect of heating and transport costs. It apologised for the failure to disregard the mobility component in the previous assessments and confirmed this had been rectified. The response made no reference to the issue about the day centre costs during lockdowns.
21. The Council sent Ms Y an invoice of over £3,500 for outstanding charges. In response to a request, recovery was put on hold to allow Ms Y’s representatives to further query the amounts owed. The Council sent a further detailed response about the financial assessment on 12 November. It again said that it would amend and backdate the assessment if evidence of DRE was provided. It said that evidence was required for audit purposes.
22. Further correspondence between the Council and Ms Y’s representatives resulted in details of charges and payments as well as a spreadsheet giving a full breakdown of how the charges were calculated. However, despite providing detailed information and trying to answer queries, the Council was unable to satisfy Ms Y’s representatives. The Council also said the query about the costings for zoom meetings would be passed to its commissioning department. I have not seen any evidence to show the Council ever responded to this point.

Analysis

23. Ms X complains about the financial assessments and also the level of day centre charges during lockdown. I consider the two matters to be separate and so will deal with them as such.
24. There was fault in the financial assessments dated October 2021 and April 2022. The Council failed to disregard the mobility component. It explains that this is because the new system required an officer action to ensure the disregard was applied and this did not happen. This error was rectified when a new assessment was completed in August 2022.
25. The August 2022 re-assessment also made changes to the amount of DRE included. In the previous two incorrect assessments provisional amounts of DRE had been included but clearly stated the Council was waiting for evidence to confirm the figures. The Council also wrote to Ms X and Ms Y in October 2021 explaining that this evidence was required.
26. There is nothing to suggest the Council ever received any evidence in respect of the claimed DRE. I note the argument now being made that the evidence is no longer available due to the passage of time. While I understand this, I am satisfied the Council was clear at the time of the assessments that the evidence was required and so it would have been possible for Ms Y to provide it. I am not persuaded it was fault for the Council to remove the DRE expenses in August 2022 due to a lack of evidence. The Council said that it would backdate the amounts if the evidence could be provided.
27. Following the first incorrect assessment in October 2021, Ms Y’s solicitor wrote to the Council querying it. The Council failed to respond to this letter. This is fault. It is possible that if the Council had responded to this letter, the situation would have been resolved sooner and the continuing disputes about charges would now be resolved.
28. I appreciate Ms X remains unhappy about the charges made by the Council. The Council has provided detailed information about the charges and how it calculated them but Ms X says this is not clear and so has declined to pay the amounts demanded. I am satisfied the Council corrected the errors around the mobility component and sent a revised financial assessment showing the calculations. The Ombudsman does not make decisions on behalf of the Council and does not provide a route of appeal against its decisions.
29. So far the Council has chosen not to pursue the outstanding charges but it is possible this situation could change. If Ms X continues not to pay, the Council could take recovery action which may ultimately end up in court. It would then be open to Ms X to challenge the amounts demanded and any dispute can be resolved in court which is the appropriate way to deal with this issue.
30. Ms X also complains about how the day centre services changed during the COVID-19 pandemic but the charges did not. It is my understanding the day centre is operated by a charity and not the Council. Therefore, it is responsible for all decisions around charges and services operation. During COVID-19 lockdowns government guidance would have prevented in-person services being provided and so it is not surprising that services moved to an online format.
31. In response to my enquiries, the Council says that the charity notified all service users and their families about the changes to the day centre service before moving to online provision. It also says that on 17 August 2021 the charity hosted a question and answer sessions to explain the situation.
32. I note that Ms X and the solicitor acting for Ms Y, raised the question of the cost of online day centre services many times. At one point the officers dealing with the financial assessment told Ms X it was referring her query to its commissioning department for a response. I have not seen anything to suggest a response was provided. This is fault.
33. However, in response to my enquiry on this point, the Council explains that even if the charges for the online day centre had been reduced, this would not have affected the amount Ms Y was required to pay. Ms Y is not required to pay the full cost of the services provided to her. She is required to pay a contribution towards the cost based on her available income. This means that the charge for the online day centre would have to fall below the level of Ms Y’s assessed charge before the amount she actually paid reduced.
34. So while it was fault not to explain this properly and to respond to Ms X’s queries, Ms Y was not significantly affected because she has not been charged the full cost of the service.

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Agreed action

35. To remedy the injustice caused by the fault identified above, the Council will, within one month of my final decision, take the following action:
• Apologise to Ms X and Ms Y;
• Make a symbolic payment of £250 to recognise the distress caused.
36. The Council should provide us with evidence it has complied with the above actions.
37. I have not recommended any service improvements as I am satisfied the Council has already taken action to resolve the problem around the failure to disregard the mobility component. This included training for officers.

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Fial decision

38. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman