Hampshire County Council (24 001 385)
The Ombudsman's final decision:
Summary: Mr X complained about the way the Council has assessed his father, Mr Y’s finances and calculated his contribution towards the cost of his care. We found there is no evidence of fault in the way the Council assessed Mr Y’s finances. However the delays in responding to Mr X’s complaints amount to fault, for which the Council should apologise.
The complaint
- The complainant, Mr X complained about the way the Council has assessed his father, Mr Y’s finances and calculated his contribution towards the cost of his care.
- In particular Mr X complained the Council has failed to properly assess Mr Y’s disability related expenditure and has awarded a flat rate transport allowance and not allowed the cost of a companionship and assisted transport service. Mr X also complains the Council has applied an incorrect minimum income guarantee amount.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- As part of the investigation, I have:
- considered the complaint and the documents provided by Mr X;
- made enquiries of the Council and considered the comments and documents the Council provided;
- Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Charging for social care services
- 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)
- 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.
- 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.
- The (Charging and Assessment of Resources) Regulations 2014 outlines a person is entitled to minimum income guarantee (MIG) which is the minimum amount they must be left with after any contributions towards their care and support.
- For 2023 to 2024, the time period relating to Mr Y’s complaint, a single person of State Pension age is entitled to a MIG of £214.35 per week. A single person who is in receipt of, or the Council considers would, if in receipt of income support, be in receipt of the disability premium is entitled to an additional £45.75 per week.
Disability Related Expenditure
- 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 here
- Mr Y lives at home and has a package of care provided by a live-in carer. When Mr Y’s savings fell below the capital threshold in late 2020 the Council carried out a financial assessment and calculated Mr Y’s contribution towards his care. Mr X says Mr Y’s income after the deduction of the contribution has been insufficient to meet his essential expenditure. Mr Y was therefore having to use his savings.
- In April 2023 the Council carried out an annual financial review and advised Mr Y of his new contribution. Based on this assessment Mr X projected Mr Y would have exhausted his entire savings within the next 18 months. He contacted the Council to raise a number of concerns about the recent financial assessment.
- Mr X queried the amounts allowed for DRE. He asserted the whole of Mr Y’s Attendance Allowance should be disregarded. Almost all of Mr Y’s journeys now had to be undertaken by car and he had to be accompanied by a carer. Mr X provided a breakdown of the cost of Mr Y’s taxi’s in the previous month and asked for the full amount to be taken into account in the financial assessment.
- In addition Mr X asked that the cost of a fortnightly trip with a companionship and assisted transportation service be taken into account. He told the Council this was one of the very few opportunities Mr Y had to engage socially with another person and was therapeutically beneficial to him.
- Mr X also asked the Council to take account of Mr Y’s higher electricity and gas costs, and his chiropody costs. He asked the Council to review the financial assessment to take account of Mr Y’s full DRE and to use the correct Minimum Income Guarantee.
- As he had not received a response, Mr X chased the Council in late May 2023. He also asked the Council to consider Mr Y’s expenses on incontinence pads.
- The Council responded in July 2023 and advised it had adjusted Mr Y’s financial assessment in accordance with its guidance and maximum allowances and when finalised would backdate this to the date of the annual review.
- The Council confirmed it had adjusted the calculation to include the maximum allowance for incontinence pads and for additional laundry and replacement bedding. It had not made any additional allowance for energy cost but had adjusted the chiropody allowance. As Mr Y’s taxi and transport costs were above the maximum the Council could allow it was awaiting a decision from the adult services team as to whether an additional allowance could be made.
- In relation to the Minimum Income Guarantee the Council advised the figure was set by the Department of Health and it could only use the figure for a single person of state pension age. The Council advised Mr Y would not be entitled to receive income support so would not be entitled to the disability premium.
- A social worker contacted Mr X for further details of Mr Y’s taxi journeys and the fortnightly companionship service. Mr X provided this information and in September 2023 the social worker advised these expenses could not be taken into account in determining Mr Y’s contribution. It noted the financial assessment already took account of transport expenses and that any additional expenses would need to be funded privately and covered by benefits such as Attendance Allowance.
- The Council also carried out an annual review of Mr Y’s care needs in August 2023. Mr Y’s daughter, Mrs Z and one of his carers attended the review.
- In the daily living section the assessment, under details of your daily activities it notes the carer walks Mr Y to the shops and assists with cleaning, laundry, and meal preparation. It says the family manages home maintenance and gardening.
- In terms of his social circumstances the assessment notes the carer lives in the house for continuous support and Mrs Z visits at the weekend. It also says Mr Y is accompanied to the cinema, goes on walks and goes shopping. The assessment identifies social isolation, deterioration of physical and mental wellbeing as possible risks. Under actions identified it says Mr Y has care support inside and outside the house and Mrs Z visits.
- In October 2023 Mr X made a formal complaint. He was unhappy the Council expected Mr Y to use part of his Attendance Allowance to meet his care charges when he needed the whole allowance to meet his disability related expenditure, including transport costs. Mr X questioned how the Council had calculated the transport allowance of £26.29 included in Mr Y’s financial assessment. He assumed this was based on the standard rate of the mobility component of Personal Independence Payment (PIP). Mr X did not consider it appropriate to apply a flat rate rather than take account of the amount Mr Y actually incurred.
- Mr X also complained the Council had not provided a proper explanation why the companionship and assisted transportation service was not included as DRE. In addition he questioned why the Council had not made an allowance for additional energy costs as provided for in the statutory guidance.
- The Council responded in January 2024. It said its financial assessment policy and processes are compliant with the Care Act 2014 and statutory guidance. The guidance sets out the benefits to be included in an assessment and the allowances to be made or included in calculations.
- It also considered the individual’s circumstances, including their care and support needs when deciding what can be considered as necessary DRE. Where necessary the Council will consider the advice given in the National Association of Financial Assessment Officers’ (NAFAO) Guide to Disability Related Expenditure.
- In relation to Mr X’s particular concerns the Council confirmed the Attendance Allowance must be taken into account when considering what a person can afford to pay towards the cost of their care and support.
- The Council confirmed the transport allowance was in line with the mobility component of PIP and that any additional transport costs specifically related to disability would need to be approved by its social care team. The social care team had decided these additional transport expenses were not directly related to Mr Y’s disability.
- In order to consider additional heating costs, the Council asked Mr X to provide a statement showing Mr Y’s energy costs for a full year.
- Mr X was not satisfied with the Council’s response or the length of time taken to receive it. He asked for his complaint to be considered at the next stage of the process.
- The Council’s response reiterated it could not adjust the Minimum Income Guarantee as this figure was set by the Department of Health. Mr Y was not entitled to Income Support and was therefore not entitled to the disability premium.
- It noted Mr X did not receive PIP and the Council was not required to make an automatic allowance for travel costs. However, in order to expedite the financial assessment process the Council had adopted an approach whereby it could authorise a certain level of DRE without requesting additional supporting evidence or referring it to the care team.
- The Council had put Mr X’s request for additional travel and companionship costs to the care team who had decide they could not be agreed. In reaching this decision the care team noted:
- Mr Y receives a significant budget to support his wish to remain at home, where the family had said he does not like the company of lots of different people. Mr Y is supported by a live-in carer
- Unlike many individuals living alone Mr Y has the companionship of the same carer for weeks at a time. The Council was satisfied Mr Y’s requirement for companionship was met.
- Clothes shopping, barbers, and medical appointments are appointments that all individuals may need to attend. Mr Y would be expected to use his Attendance Allowance to support these if he was unable to look at alternatives.
- Having considered the information provided in relation to Mr Y’s energy costs the Council agreed an allowance for increased heating costs.
- As Mr X remains dissatisfied with the Council’s response, he has asked the Ombudsman to investigate his concerns. He complains the Council has not treated the taxi costs and the companionship with assisted transport service as separate expenses. In relation to the taxi costs Mr X says the fact the Council has applied a DRE allowance suggests it accepts it is necessary for Mr Y to incur taxis fares, but disputes the amounts claimed. Mr X says health and mobility issues mean the only way he can undertake journeys is by car. He considers it clear that the taxi fares are necessary DRE.
- As leaving home on a regular basis and undertaking everyday activities is important for Mr Y’s wellbeing his expenditure on taxis is more than the standard allowance. Mr X maintains that if the Council uses PIP as the bench mark for the amount a person is likely to need to spend to meet their disability related mobility needs, in Mr Y’s case it should use the enhanced rate. He also maintains that Mr Y’s Attendance Allowance should not be taken into account in the financial assessment.
- Mr X notes that Mr Y’s care assessment in 2020 says he is at risk of social isolation and has eligible needs in terms of “developing and maintaining family or other personal relationships; making use of necessary facilities or services in the local community including public transport and recreational facilities or services”. Mr X does not consider the provision of a live-in carer meets these needs and maintains the companionship service should be considered DRE.
- In relation to the Minimum Income Guarantee Mr X asserts Mr Y is entitled to the basic guaranteed amount of £214.35 and an additional disability premium amount of £47.75. He asserts the Regulation 7(5)(a) does not only apply to people who are entitled to Income Support. It says it also applies to people who would be entitled to the disability premium if they satisfied the Income Support entitlement rules.
- Mr Y was not entitled to Income Support in April 20203. However, Mr X says that if he had been then he would have been entitled to the disability premium because he was in receipt of Attendance Allowance. Mr X asserts that Mr Y therefore meets the criteria for the additional disability premium.
- In response to my enquiries the Council says it has undertaken the financial assessment in line with the Care and Support Statutory Guidance. Mr Y is not entitled to PIP and the Council believes it has included the correct benefits and allowances in the financial assessment.
- The Council says that in considering a discretionary amount it would consider its Care Act responsibilities and establish if the additional costs are because of an eligible need. As with all eligible needs the Council would need to consider the resources available to the individual and the services that are universally available within communities to meet needs.
Analysis
- The Ombudsman’s role is not to question the Council’s decision making but to decide if the Council has considered and followed the relevant legislation and guidance.
- The Council has calculated Mr Y’s MIG in line with the figures detailed by the Government for 2023 to 2024. Although Mr X disagrees, I am satisfied the Council had calculated the MIG correctly for Mr Y’s circumstances and used this within its financial assessment of Mr Y.
- Disability premiums are extra amounts of money added to certain benefits, including Income Support. To be eligible for disability premium payments you must be under pension credit age and receive a benefit such PIP, Disability Living Allowance or Attendance Allowance.
- Mr Y does not receive and is not entitled to receive income support, he is also over pension credit age so he is not entitled to disability premium payments.
- I do not find fault with the Council’s calculation of Mr Y’s MIG.
- Mr X also disagrees with the Council’s calculation of Mr Y’s DREs. DREs are specific costs relating to a person disability. The Council needs to consider any costs that might reasonably be attributed to someone’s disability. The Council has shown it considered the guidance when it included Mr Y’s extra bedding and laundry, chiropody, incontinence aids and extra heating.
- The Council has also included an element for transport as DRE, but it has not included the full cost of Mr Y’s taxi fares. Nor has it included the cost of a fortnightly companionship and transportation service.
- In reaching this decision the Council sought advice from its social care team regarding Mr Y’s needs. The social care team did not consider Mr Y’s additional expenses were directly related to Mr Y’s disability. They noted service users often arrange a visiting chiropodist, and hairdresser, and do online shopping.
- The guidance confirms it may be reasonable for a council not to allow for items where a reasonable alternative is available at lesser cost.
- The social care team also considered Mr Y’s requirement for companionship and determined this was met through support from the live in carer, support from family and some self-funded trips. It noted any individual choosing to go to a cafe would be expected to self-fund.
- Mr Y disagrees, but the Council considered the relevant information when deciding not to award these costs and I do not find fault.
- However the delays in responding to Mr X’s complaints at stage 1 of the complaint process do amount to fault. The Council’s complaint procedure says investigations will be completed within 20 working days. It notes that there may be cases where it cannot meet this deadline and says that complainants will be kept informed and provided with regular updates.
- In this instance the Council took over 11 weeks to respond to Mr X’s complaint at stage 1. I have not received any evidence Mr X was informed the responses would be delayed. We expect councils to respond to complaint in a timely manner, and in line with their published complaints procedure. Failure to do so is fault.
Agreed action
- The Council has agreed to:
- apologise to Mr X for the delays in responding to his complaints and the frustration this caused;
- ensure its complaints team are aware of the Council's complaints policy and timeframes and remind this team of the process for keeping complainants informed of any delays.
- The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.
Final decision
- There is no evidence of fault in the way the Council assessed Mr Y's finances. However the delays in responding to Mr X's complaints amount to fault, for which the Council should apologise.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman