Summary: Ms X complains the Council was at fault in the way it carried out a non-residential financial assessment on her mother Mrs Y to calculate her contribution towards her care costs causing distress and financial loss. We have found no evidence of fault in the way the Council carried out the financial assessment. So, we have completed our investigation.

The complaint

1. I have called the complainant Ms X. She complains for her mother, Mrs Y that there were failings in the way the Council carried out a Non-residential financial assessment on Mrs Y. Ms X considers the assessment is contrary to the Care and Support statutory guidance and differs to another Council’s Charging Policy she has knowledge of. In particular Ms X says:
• The Council should only be carrying out a single person assessment on Mrs Y as required by the statutory guidance and not a household (couples) assessment.
• The Council should not be assessing Mrs Y for pension credit as she would not qualify for it due to the household income. Ms X said it could cause Mrs Y financial hardship and her savings would reduce at a faster rate because of the assumed income in the financial assessment.
• The Council should not be including all of Mrs Y’s higher rate Attendance Allowance in the financial assessment as income. Ms X says it was unfair to do so as Mrs Y no longer had carers sitting with her at night. Ms X considered the Council’s actions were contrary to case law which said Councils should not treat this income especially paid to cover nighttime services to pay for daytime care services.
2. Ms X says the Council’s actions have caused Mrs Y distress and financial hardship.

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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)

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How I considered this complaint

5. I read the documents provided by Ms X and I discussed the complaint with her on the telephone. I read the documents the Council provided in response to my enquiries.
6. 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

Law 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. The statutory guidance says 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. 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)
9. The financial assessment will need to look across all of a person’s assets – both capital and income – decide which is capital and which is income and assess those assets according to the regulations and guidance. This can include notional capital and notional income where a person may be treated as possessing a capital asset or income even where they do not actually possess it. This can be capital or income which would be available to the person if they applied for it.
10. In assessing what a person can afford to contribute a council must apply the upper and lower capital limits. The upper capital limit is currently set at £23,250 and the lower capital limit at £14,250. A person with assets above the upper capital limit will be deemed to be able to afford the full cost of their care. Those with capital between the lower and upper capital limit will be deemed as able to make a contribution, known as ‘tariff income’, from their capital. Any capital below the lower capital limit should be disregarded.
11. The guidance says Councils may take most of the benefits people receive into account when considering what a person can afford to pay from their income towards the cost of their care. This can include Attendance Allowance and Pension Credit.
12. Councils have no power to assess couples according to their joint financial resources. A council must treat each person individually. Where this person receives income as one of a couple, the starting presumption is that the cared-for person has an equal share of the income. A local authority should also consider the implications for the cared-for person’s partner.
13. 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 Council’s Fairer Contributions Policy April 2015 (updated April 2021)

14. This sets out the way the Council will exercise its discretion to charge for Adult Social Care. In summary it explains that when carrying out a financial assessment it will consider a person’s income and assets. This includes notional capital and income. It will look at the MIG and consider income including State benefits such as Attendance Allowance and Pension Credit. The Council considers any DRE a person many have.
15. The Council’s policy has a section on couples. In summary it says that only the service user’s own capital and income can be counted in the financial assessment. Where there is a beneficial entitlement to a jointly owned income or capital asset each person will be deemed to own an equal share unless proven otherwise.
16. If it is clear there will be a financial detrimental to the service user’s partner by charging an amount assessed on the service user’s individual finances, it will offer a financial assessment based on the couple’s joint resources. The couple’s financial assessment will only be used if it results in a better outcome for the service user and their partner agrees to it.
17. The Council offers an appeals process to all service users. Appeals about financial assessments are made to the Decision-Making Panel and the Revisit and Review Panel.

What happened in this case

18. What follows is a brief chronology of key events. It does not contain all the information I reviewed during my investigation.
19. Mrs Y lives at her home with Mr Y and started to receive care support provided by the Council. The Council carried out a financial assessment on Mrs Y and said she need to pay £49.50 a week towards her care costs. Ms X complained as she considered Mrs Y should not be charged due to her income. The Council advised it offered service users a single person assessment and a couple’s assessment. Mr Y did not provide his financial information, so officers carried out a single person assessment on Mrs Y.
20. Ms X provided Mr Y’s financial information. The Council carried out a revised single person financial assessment and reduced Mrs Y’s contribution to £45.50. It also reduced the charge further to £35.50 because of Mrs Y’s need for Disability Related Expenditure (DRE) on items for her health needs.
21. Ms X appealed to the Council about Mrs Y’s charge. Ms X include her concerns about the way the Council applied the regulations and statutory guidance. Ms X also referred to her concerns about the Council not using a single person assessment, adding pension credit and attendance allowance. The Council’s Decision-Making Panel did not uphold the appeal. But following further information the Council reduced Mrs Y’s charge to £32.14 per week. Ms X made a further appeal which was considered by the Council’s Revisit and Review Panel but not upheld.

The Council’s response to Ms X’s complaints

22. When considering Ms X’s appeal, the Council explained it carried out a couple’s assessment and a single person assessment. According to the couple’s assessment Mrs Y would pay the full cost of her care up to a maximum £504. The cost of Mrs Y’s care was £441 per week. The single person assessment was more beneficial to Mrs Y based on what she would be entitled to as a single person without Mr Y’s income and capital.
23. This meant Mrs Y would have the MIG for a single person of retirement age £201.05 (10 April 2023). Mrs Y’s state pension meant she would have less than that each week. So, the Council applied a pension credit calculator as it would ask Mrs Y to apply for Pension Credit to take her income up to the MIG levels. The Council calculated the amount Mrs Y would receive taking into account any tariff income charge for her capital. The Council also included the Attendance Allowance Mrs Y received resulting in a weekly charge of £42.14 towards her care costs. This had been reduced to £32.14 after taking account of DRE of £10 a week with the Council funding £408.86 of the cost.
24. The Council confirms it does not carry out household financial assessments. But says the rules around charging and couples are challenging with conflicting instructions. This is because it can only consider the resources of the person it is assessing. But needs to be mindful of the partner of the person to ensure they are not left without means. The Council says it must also consider that some benefits are based on a couple so are assessed and paid jointly. To manage the conflicts the Council offers a couple’s assessment and a single person assessment. It uses the lower contribution to ensure the partner is considered but not disadvantaged. The Council considers this benefits the individual assessed as the lower outcome is used and its actions are compliant with the duties under the regulations.
25. The Council confirms it considers benefit entitlement to single people only. The Council expects Mrs Y to apply for Pension Credit to ensure her income meets the MIG. The Council considers this complies with the statutory guidance and ensures consistency and fairness so that only a person’s benefits are considered when calculating their possible entitlement to Pension Credit.
26. The Council confirms the case law Ms X refers to regarding using Attendance Allowance applied to the legislation before the Care Act 2014. Now the benefits to be include are listed in Annex C such as Attendance Allowance. The Council says that where a person has nighttime needs these are reflected in their care plan or covered by DRE.
27. The Council says it carries out all financial assessments according to the Care and Support Statutory Guidance (updated 1 June 2023), The Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Fairer Contributions Policy. This is to make sure it only asks a person to pay what they can afford to pay toward their care and support, and this is the same for everyone who receives Adult Social Care.

My assessment

28. Ms X’s complaint concerns the Council using a couples or household assessment on Mrs Y to calculate her contribution towards her care costs. The Council confirms its interpretation of the statutory guidance is to ensure it takes into account the effect of an assessment on the person’s partner by assessing the income of both in the couple. But it also carries out a single person assessment. So, while Ms X may be unhappy at the couple’s assessment carried out by the Council it has used a single person assessment on Mrs Y which is the requirement of the legislation and guidance. It is also the assessment Ms X was expecting the Council to carry out.
29. The Council calculated the details of Mrs Y’s charges based on its interpretation of guidance, regulations, and its policy. It is not for us to say whether this is a correct interpretation of the law and guidance. But the documents provided show the Council carried out Mrs Y’s assessment according to its charging policy. This is because it has demonstrated that it has considered Mrs Y’s income and capital including any notional amounts and the benefits, she receives to calculate Mrs Y’s charge towards her care costs.
30. Ms X has been able to appeal the decision on the charge and it has been looked at again by the Council’s panels. While Ms X may be unhappy at the outcome, there is no evidence of fault in the way the Council carried out the financial assessment on Mrs Y. So, there are no grounds for us to criticise the merits of the Council’s decision that Mrs Y must contribute towards the cost of her care and the amount it has calculated she must pay.
31. Ms X has raised concerns about the Council’s technical application of the regulations, guidance and whether the Council’s policy complies with those requirements. Ms X has an opinion as to how the requirements should be applied through her knowledge of a different council’s charging policy. However, a difference of opinion is not evidence of fault by the Council. And the regulations and guidance do allow councils some discretion in setting a charging policy. Ms X would need to go to court to challenge this aspect of her complaint about the technicalities of how the Council applies its policy and whether it complies with the regulations and guidance.

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Final decision

32. I have completed my investigation. I have found no evidence of fault in the way the Council has carried out a financial assessment on Mrs Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman