Summary: Miss Y complained the Council failed to honour its original offer of a zero-client contribution for her mother. We find the Council was at fault for its lack of clarity about the zero-client contribution. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Miss Y complained the Council failed to honour its original offer of a zero-client contribution for her mother, Ms X. She says the Council agreed to disregard the client contribution, based on them having to buy additional care to cover Ms X’s needs. However, it then failed to follow through with the agreement.
2. Miss Y says the matter has caused distress and upset to both her and Ms X. She says she made life changing decisions based on the Council’s original agreement.

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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. 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)
5. 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

6. I considered information from Miss Y. I made written enquiries of the Council and considered information it sent in response.
7. Miss Y 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

Charging

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)
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.

Disability Related Expenditure

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.

Direct payments

11. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs.

What happened

12. This chronology provides an overview of key events in this case and does not detail everything that happened.
13. Ms X has care and support needs. She was receiving care and support via direct payments from a private carer and a home help and companionship agency. Miss Y also provided support.
14. Ms X’s husband died at the end of 2022. Miss Y contacted the Council and asked it to complete a reassessment of Ms X’s needs.
15. The Council completed the reassessment in March 2023. Miss Y said she had taken a career break to look after her parents. She said the care arrangements were not sustainable, and she wanted to return home and go back to work. The Council’s said if Miss Y returned home, Ms X would struggle to manage her own needs. It recommended a 24-hour residential care home placement. Ms X said she did not want to go into a care home. The Council discussed an alternative to residential care direct payments option. This would allow Ms X and Miss Y to access funds for a residential care home placement and make their own care arrangements for 24-hour care within Ms X’s home.
16. Miss Y said the direct payments did not cover the full cost of Ms X’s care. She said they had to top up the care costs (the difference between the direct payments and the hourly rate from the carers) which meant Ms X was in debt. She also said 24-hour care at home was likely to be unaffordable because of the client contribution and the top up care costs. The Council said it would contact the financial assessment team to see if it could review the client contribution.
17. The Council completed a financial assessment and decided Ms X would have to pay £164.32 per week as client contribution towards her care and support. Miss Y spoke to the Council. She said the client contribution was unaffordable as Ms X was also paying top up fees. The Council reiterated its previous offers of a care home placement and alternative to residential care placement direct payments. Miss Y declined both options. The Council also said it could offer a small increase to the direct payments hours to include support with shopping and domestic tasks which Ms X would need if Miss Y returned to work. Miss Y said she would speak to her manager about different options for her job.
18. The Council spoke to Miss Y at the end of March. Miss Y said she was still considering whether 24-hour care was feasible.
19. Miss Y emailed the Council in April and said she applied for a further career break extension for her job, but her employer had refused it. She said the only option was to become Ms X’s main carer, with the private carer providing a few hours respite. She said she would have to resign from her job. She asked how she could access the full direct payments amount of £616.87 per week with no client contribution. The Council responded and said it would class any care above £616.87 per week as DRE. It would reduce the client contribution to balance this out and cover the costs.
20. The Council sent Miss Y an email at the end of April. It agreed to waive Ms X’s client contribution as it was considered DRE, as Ms X would buy additional care to supplement her care package.
21. Miss Y emailed the Council in early June and said she understood Ms X’s client contribution was zero, and she needed to send invoices for the additional hours of care as evidence. The Council responded and said it needed to see the invoices to make the client contribution zero.
22. Miss Y provided the Council with the invoices in late June. The Council reviewed the invoices. It told Miss Y it had reduced Ms X’s client contribution to £55.44 per week. It said if Miss Y or the private carer were delivering more hours and being paid, it could take this into account in relation to the client contribution. However, Miss Y would need to provide further invoices.
23. Miss Y contacted the Council the same month. She said she was providing Ms X with 24-hour care, but she was not invoicing her fully as it would put Ms X in debt. She said she was anxious about the client contribution, and she thought the matter had been resolved in April. The Council agreed to investigate the matter as a complaint.
24. The Council responded to the complaint in September. It said it can only consider actual expenditure as DRE. It said the DRE allowance for fuel had reduced because the average fuel cost had changed. It also said it had previously made an allowance for Miss Y providing an additional 4.5 hours of paid care to Ms X above what she was paid from the direct payments. However, Miss Y had confirmed Ms X had not paid her for this care. Therefore, it could not deduct this from Ms X’s client contribution. Ms X’s new client contribution amount was £110.17 per week as a result.
25. Miss Y spoke to the Council on the phone about her complaint. She reiterated her previous concerns about Ms X being unable to afford the additional care.
26. The Council issued a further response to Miss Y’s complaint in December. It said it should have recorded more clearly in Ms X’s care and support plan about her liability to pay a client contribution. It therefore agreed to cancel the client contribution from May 2023 to January 2024. It said from January 2024 Ms X was liable to pay a client contribution of £110.17 per week.
27. Miss Y continued to raised concerns about the client contribution. She provided further evidence of DRE. The Council considered this information and reduced the client contribution to £62.79 per week.
28. The Council completed another financial assessment for Ms X in April and increased her client contribution to £88.42 per week.

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Analysis

29. The Council has accepted there was a lack of clarity regarding Ms X’s liability to pay a client contribution. It has waived the client contribution from May 2023 to January 2024 to remedy this. However, it states the amount of additional care Ms X has bought is not sufficient to reduce the client contribution to zero. It says it can only allow DRE for expenses Ms X has incurred.
30. I agree the Council should have provided Miss Y with further clarity about the client contribution in its email from April 2023. It explained to Miss Y it would waive the client contribution as Ms X was buying additional care to supplement her care package. However, it should have gone on to explain this would be subject to a full financial assessment and therefore was no guarantee the client contribution would be waived. A more detailed explanation was required. The Council’s fault has caused Ms X and Miss Y shock, upset and distress. Its failure to provide enough clarity means Ms X and Miss Y lost the opportunity to make a fully informed decision and they have some uncertainty about whether they would have made different decisions.
31. I welcome the Council has waived the client contribution for Ms X from May 2023 to January 2024. This is a significant amount of money and goes some way into remedying Ms X’s injustice. However, it should also apologise to her. There is an also an injustice to Miss Y that the Council has not remedied. It should now do so.
32. Miss Y wants the Council to honour its agreement to reduce the client contribution to zero. The Council has explained it will do this, but it needs evidence sufficient DRE is being incurred. It has not received this evidence. I agree with the Council it can only make an allowance for an expense Ms X has incurred. This is not unreasonable.

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Agreed action

33. By 6 February 2025 the Council has agreed to:

• Apologise to Ms X and Miss Y for the shock, upset, distress and uncertainty caused.
• Pay Miss Y £250.

34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. There was fault by the Council, which caused Miss Y and Ms X an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman