Summary: Mrs X complained the Council failed to respond to many of her emails; failed to tell her about extra charges for additional carers and failed to consider her late father’s private care provision during its financial assessment. We find the Council was at fault for delay in responding to Mrs X’s emails. This caused her significant distress, and she spent unnecessary time and trouble in contacting the Council. The Council has agreed to make several recommendations to address this injustice caused by fault.

The complaint

1. The complainant, Mrs X, complains the Council:
• failed to reply to many of her emails about her late father’s care fees;
• failed to tell her about extra charges for additional carers;
• took over a year to reply to some of her concerns; and
• failed to consider her father’s private care provision of £540 per month during its financial assessment.
2. Mrs X said this has caused her significant 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. I spoke with Mrs X about her complaint. I considered all the information provided by Mrs X and the Council.
6. 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

Assessment

7. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.

Charging for social care services: the power to charge

8. 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)

How to assess; Thresholds; DRE

9. 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.
10. 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

11. 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.
12. The care and support statutory guidance states in assessing disability-related expenditure, local authorities should include the following. However, it should also be noted that this list is not intended to be exhaustive and any reasonable additional costs directly related to a person’s disability should be included:
• costs of any privately arranged care services required, including respite care.
13. The care plan may be a good starting point for considering what is necessary disability-related expenditure. However, flexibility is needed. What is disability-related expenditure should not be limited to what is necessary for care and support. For example, above average heating costs should be considered.

Summary of the key events

14. The Council completed a care act assessment in early August 2022 for Mrs X’s father, Mr Y. This noted due to an incident, reablement care have been providing support with two carers.
15. The Council wrote to Mrs X towards the end of August 2022. It stated it had completed a financial assessment and Mr Y had been assessed to pay a maximum weekly charge of £139.23. This was for all non-residential care services provided from the 11 July 2022. This detailed the costs for two carers.
16. In response to the letter, Mrs X said when she met with the Council officer who carried out the financial assessment, she raised the fact that Mr Y had been paying for private care. This amounted to £540 per month for carers to take Mr X out on trips. She asked if this would be considered but said she had no response.
17. Mrs X asked the Council for urgent help and said Mr Y’s health had deteriorated.
18. Late September 2022, Mrs X told the Council she had been querying an invoice she had been sent. But said she had not had a response.
19. Mrs X made the Council aware that Mr Y had sadly passed away on the 7 December 2022.
20. A few days later Mrs X asked the Council to contact her urgently. She chased a response.
21. Mrs X contacted the Council in January 2023. This was to query the invoice she had been sent for Mr Y’s care. She said she had previously queried whether the additional costs he was paying for care could be considered. But said she had still not had a response.
22. The Council’s direct payments team said it would forward Mrs X’s query onto the relevant team. It was noted the total personal contributions chargeable for the period between 20 September 2022 and 7 December 2022 was £1551.42.
23. Mrs X asked the Council to explain the costs she owed. She asked if the £540 per month would be considered.
24. The Council’s direct payment team contacted Mrs X in February 2023 with a breakdown of costs. It was noted that the total amount outstanding was £1969.11. This was for reablement care from two carers.
25. The Council contacted Mrs X in response to her request for the £540 per month to be considered. It said the support plan did not mention any other care providers being involved in Mr Y’s care. It therefore said this cost could not be included. But it said if Mrs X has invoices, it could check whether an allowance could be made.

Complaint to the Council

26. Mrs X complained to the Council in March 2023. She said:
• she had received an invoice for an unpaid personal contribution for a direct payment;
• the Council contributed towards Mr Y’s care. But she asked why the £540 per month could not be taken into account
• why did she not have to provide invoices for gardeners and cleaners; and
• her emails had not been responded too.
27. In response the Council said:
• 24-hour care and the direct payment was set up to be around the same cost as a residential placement would have been;
• as the agreement was to fund at the residential rate, it needs to see evidence of the additional costs for carers of £540 per month;
• the funding team could consider whether they agreed if this care was necessary on top of the reablement; and
• the reason it didn’t need invoices for gardening and cleaning was because it has a set weekly amount it allows to cover these costs.

Analysis- was there fault by the Council causing injustice?

28. It was noted in the assessment in August 2022 that two carers were providing reablement care. The Council sent a letter to Mrs X later in the month detailing the charges that applied for those two carers. Therefore, I am satisfied the Council did make Mrs X aware of the costs.
29. Mrs X queried the invoice in September 2022 and questioned whether the Council would consider the cost Mr Y paid for private care. But the Council did not respond until February 2023 where it provided a breakdown of costs and confirmed the additional care payments could not be considered. The delay in providing the response is fault.
30. As detailed in paragraph 25, the Council said it could not consider the additional care payments. This was because the support plan did not mention any other care providers being involved in Mr Y’s care. The care and support statutory guidance states in assessing disability-related expenditure, councils should include costs of any privately arranged care services required.
31. In this case the Council told Mrs X to send in invoices. It said it would check whether an allowance could be made. I note Mrs X said she does not have invoices. But said she can provide copies of bank statements. It is therefore open to the Council to consider the information.
32. As there is fault in this case, we must consider the injustice caused to Mrs X and provide a remedy. The Council correctly made Mrs X aware of the charges. But when Mrs X queried this, it took six months for the Council to provide a response. This meant Mrs X spent unnecessary time and trouble in contacting the Council. This caused her significant distress.

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Agreed action

33. To address the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• write to Mrs X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation; and
• pay Mrs X £300 for the avoidable distress, time and trouble caused by the Council’s actions.
34. Within two months remind relevant officers of the importance of providing clear communication and responding in a timely manner.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman