Summary: Mrs X complains the Council did not assess her daughter Ms Y’s care charge properly. We have not found fault in the Council’s decision making. However, there were significant delays by the Council in advising Mrs X and responding to her complaints. The Council has agreed our remedy.

The complaint

1. Mrs X complains on behalf of her daughter Ms Y that the Council has unfairly refused to take account of her rent payments when assessing her financial contribution to care charges. The Council has decided that the rent charge is deprivation of income. Mrs X complains about delays by the Council in responding.
2. Mrs X also says the Council has not properly considered disability related expenditure. As a result, she says her daughter has very little money to live on.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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).
5. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974).

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How I considered this complaint

6. I have discussed the complaint with Mrs X and considered information she provided. I have made enquiries of the Council and considered the comments and documents it provided. Mrs 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

Legislation and Guidance

Charging for social care services: the power to charge

7. 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)
8. 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.
9. 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)
10. 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.

What happened

11. Ms Y, a disabled adult, lives with her mother Mrs X. She receives care and support to meet her needs via a cash personal budget.
12. In March 2021 the Council carried out a financial assessment based on a form Mrs X completed to work out what Ms Y should contribute to the care costs. On the form Mrs X stated that Ms Y paid rent of £450 per month. She also sent a letter explaining that Ms Y had disability-related expenditure, or extra costs for bedding, laundry, clothes and shoes. She stated the total annual cost was £2624.
13. In July 2021 the Council wrote to Mrs X to advise that it had assessed Ms Y should pay £45.53 to her cash personal budget as a contribution to her care costs. This was to start from 12 July 2021. The financial assessment did not include the rent charge of £450 per month. But it did include a “notional contribution to household” of £15 per week. This amount was disregarded from Ms Y’s income. The Council’s assessment also disregarded a weekly amount of £3.92 for laundry, £2.50 for wear and tear on clothing and £2.50 for wear and tear on bedding. These amounts were standard disregards.
14. On 26 July 2021 Mrs X wrote to appeal against the Council’s financial assessment. She said the charge of £45.53 per week would cause Ms Y hardship. She explained the reasons for the DRE of £2624. Mrs X said that after paying for rent and DRE costs, Ms Y only had £57 left each week. She said that Ms Y did not have the financial capacity to pay the charge. If she paid the charge she would have nothing left to pay for outings, petrol or food. It was causing a great deal of stress.
15. The Council says that Mrs X’s letter did not have any evidence of payments attached to it, or the rent charge or payments.
16. The Council wrote to Mrs X and asked for receipts or evidence of the DRE she had paid. It also asked for a copy of a tenancy agreement. It also sent a financial hardship form to Ms Y.
17. Mrs X replied in August that she had not kept receipts. She said she now understood the need to keep receipts and documentation and had recently begun to retain these. She said that there had previously been a verbal agreement about Ms Y’s living arrangements. However, as the Council had requested it, she had now put the agreement in writing. Mrs X sent the Council a signed tenancy agreement which started from August 2021.
18. The Council says that it also received a receipt for petrol from Mrs X in August.
19. The Council advised me that it did not accept Mrs X’s financial hardship appeal because it did not receive any evidence such as receipts. It sent a letter explaining this to Mrs X in August.
20. In November 2021 the Council says officers discussed the rent charge. They considered that the tenancy agreement had been created to deprive Ms Y of income to avoid care charges. Therefore, the rent would not be included as a disregard when calculating the care contribution. The Council did not advise Mrs X of its consideration.
21. In February 2022 Mrs X contacted the Council because it had sent an invoice to her for the care contributions. She also contacted the Council to ask it whether it had carried out a reassessment of the contribution.
22. In March 2022 the Council told Mrs X it had referred the matter regarding the rent charge to its legal department.
23. In May 2022 Mrs X chased the Council again because she had received another invoice. She said the Council had not carried out a full and proper financial assessment. She asked the Council to place a hold on the invoices.
24. The Council replied that its legal department was considering the matter. It asked Mrs X for evidence showing the rent payments Ms Y had made. It apologised for its delay in dealing with the matter.
25. At the beginning of June Mrs X sent the Council screenshots of bank statements showing payments of the rent amount from August 2021. She explained that one month had been paid in cash. She had now set up a standing order.
26. At the end of June Mrs X chased the Council for a response. The Council replied confirming it had passed the information to its legal team.
27. On 4 August 2022 Mrs X chased the Council again.
28. On 9 August the Council replied that its legal team had considered the information. It said that it would not include the rent in its financial assessment. It explained that in its view the tenancy agreement was created when Ms Y already had care needs, therefore the tenancy agreement was deemed as a deprivation of Ms Y’s income.
29. The same day the Council revised Ms Y’s financial assessment taking account of the petrol receipt it had received in August 2021. This reduced the care contribution to £32 per week.
30. On 15 August 2022 Mrs Y replied. She said the decision was not correct or just and complained about the length of time it had taken the Council to complete the financial reassessment. This caused an immense amount of stress and worry.
31. Later in August Mrs X appealed and complained. She said Ms Y could not pay the Council’s charge. The family had to remortgage the house in order to create an extension and downstairs bathroom for Ms Y. There had been a verbal agreement to pay the rent for a long time. The verbal agreement had been replaced by a written agreement which was legal and binding. Mrs X asked the Council what the legal basis was for it to disregard this significant expense. She said the Council had also ignored the DRE evidence that she had sent to it. The Council had also taken very long time with many unacceptable delays.
32. The Council replied on 16 September 2022. It apologised for its many delays throughout the process. It said that it had amended its processes to ensure that delays of this length did not occur again. It explained that the legal team had reviewed the tenancy agreement Mrs X had sent. It considered the agreement had been created in order to deprive Ms Y of income and therefore, reduce the payment of adult care charges. It explained that this was due to the timing of the tenancy agreement and that the rent payments were only made within the last 12 months, but this was care services had begun in December 2020.
33. The Council also explained its Adult Care charging policy clearly stated it would only allow £15 of household expenses for any service user who was living with other family members and was not liable to pay the household expenses such as council tax. It said that it must remain fair and consistent when applying the policy. Therefore, it could not allow any rent in Ms Y’s financial assessment.
34. The Council noted Mrs X referred to her letter of 26 July 2021. However, it said Mrs X had not sent any evidence with it. Without evidence the Council could not include any of the expenses. But it said that if she sent evidence such as invoices or receipts it would consider this.
35. Mrs X chased a response because she had not received copy in the post. The Council sent an emailed copy at the end of September.
36. Mrs X complained further in October 2022. She said the Council’s response about the lengthy delays was inadequate. She repeated that the Council’s charge was unjust, and that Ms Y could not afford it.
37. On 1 November 2022 the Council replied that its charging policy complied with the Care Act. Section 17 of the Act permitted the Council to complete a financial assessment to determine how much an individual can contribute to the cost of their care and support needs. The Council noted Mrs X first reported she was charging Ms Y rent in a letter of in March 2021. The Council said Mrs X had completed financial assessment forms before March 2021 which did not show rent charged. Mrs X had sent a tenancy agreement later which started in August 2021. She had also provided screenshots of debits from an account for Mr Z from November 2021. The Council said that on balance, based on the evidence provided, it believed the tenancy agreement was created in order to deprive Ms Y of income in an attempt to reduce her contribution for the cost of her care. It referred to the timing of the tenancy agreement and the rent payments only starting in the last 12 months, after care services had begun in December 2020.
38. The Council noted Mrs X said Ms Y would have to pay rent if she was living in private accommodation. It explained that if Ms X had been living in private or social sector housing with a proper and commercial liability to pay rent she could claim housing costs through universal credit or Housing benefit. If entitled there would be no housing related expense to assess when considering Ms Y’s contribution to the cost of her care. Therefore, the contribution would be the same as it was now.
39. The Council said that its policy allowed only £15 per week of household expenses where a person lives with parents or family.
40. The Council accepted there were some delays in its handling of the matter and its was sorry these had occurred. It explained it was not always clear which team had responsibility. The Council said it would review this and said it may make structural changes to facilitate greater joint working.
41. The Council noted Mrs X referred to receipts or evidence attached to her letter in July 2021. However, there were no receipts attached. Mrs X had said on 18 August 2021 that she would begin to retain receipts. The Council explained its policy said it would only include DRE where it received evidence, and where it considered the expenditure was necessary and in line with the care needs assessment.
42. In Mrs X’s final stage complaint she repeated that Ms Y was paying to keep a roof over her head and this was reducing the income she was left with. She had applied for universal credit but was not entitled as she was not paying a private landlord. Ms Y could not afford to make the payment for the accrued charges. The Council taken a very long time to respond to her emails.
43. The Council responded that there was no change to its earlier replies. It had explained it was bound by the Care Act and must apply its charging policy fairly and consistently to all residents. The Council did not accept the tenancy agreement was a proper and commercial agreement. However, it would review this if the family provided further evidence. The Council had already apologised for its delays in responding. But it did not consider its delays affected the decision it had made or the outcome.

Analysis

44. At present I have not found fault in the Council’s decision making regarding the claimed rent expense. The Council has applied its standard non-householder expenses amount in its assessment. This is in accordance with its charging policy. However, when Mrs X questioned its assessment and appealed, the Council considered the rent expense. It asked for evidence to support Mrs X’s request. The Council considered the evidence supplied, but it decided that this was deprivation of income. Therefore, it should not take account of it. The Council has considered the Care Act guidance and its own policy before making a decision. I consider that the Council has taken account of relevant factors. I cannot question the decision itself as I have explained in my paragraph 3, because I have not seen fault in the decision making.
45. Mrs X has apparently not provided evidence to support her requests for DRE in excess of the standard amounts. The Council has explained that it requires evidence and asked Mrs X to provide this. However, despite knowing the Council required evidence to support her request Mrs X has not provided it. I have not found fault by the Council here.
46. However, there were significant delays by the Council in responding to Mrs X’s appeals and requests. I consider that the delay of a year from August 2021 in responding to her request is fault causing injustice. Mrs X was caused distress and anxiety and was put to time and trouble in pursuing a response.
47. There was also a delay of a year in taking account of evidence for DRE for petrol. The Council received the evidence in August 2021 but did not act on it. While it has backdated the DRE and the charge has reduced, it should have revised the contribution earlier. Mrs X continued to question the charge, the invoices and the DRE throughout this period. I have made a recommendation to remedy the injustice I have found.
48. The Council has apologised for its delays. In response to a draft version of this statement it has explained that it has taken steps to address this. Following a reorganisation its financial assessment team is now part of the adult social care team so its processes are more aligned. It is recruiting two additional financial assessors which will enable more efficient handling of complaints and appeals. The Council is carrying out consultation on its updated adult care charging policy which aims to improve the time taken to complete financial assessments. I consider these changes are satisfactory service improvements to prevent the kind of delays that Mrs X experienced.

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Agreed action

49. I recommended that within one month of my decision the Council pays Mrs X £150 as a remedy for the distress and anxiety and the time and trouble its delays caused her.
50. The Council should provide us with evidence it has complied with the above action.
51. The Council has agreed my recommendation.

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Final decision

52. I have found fault by the Council causing injustice. The Council has agreed our remedy. I have completed my investigation and closed the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman