Summary: Mr X complained about changes to the Council’s charging policy for non-residential care services. We ended out investigation because there is ongoing court action about the charging policy and there is no significant personal injustice to Mr X.

The complaint

1. Mr X complains about the Council’s decision to amend its changing policy for non-residential care services. In particular, he complains the Council:
1. did not properly consider comments made by Mrs P during the consultation process; and
2. did not carry out a disability related expenditure assessment properly.
2. He says this has caused uncertainty about his ability to afford to pay for his care and support needs in the future.
3. Mr X is represented by his mother, Mrs P, in making this complaint.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• further investigation would not lead to a different outcome; or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. We have the power to start or end an investigation into a complaint about actions the law allows us to investigate. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been mentioned as part of the legal proceedings regarding a closely related matter. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended, section 34(B))

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How I considered this complaint

6. I considered evidence provided by Mrs P and the Council as well as relevant law, policy and guidance.
7. Mrs P and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

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)

Disability related expenditure

9. 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

10. Mr X has care and support needs. He receives a package of support from the Council. Mr X contributes some of his income towards the cost of this care.
11. In February 2024, the Council notified service users of its intention to include certain disability benefits when assessing what contribution they had to make towards the cost of care. Interested parties, including Mr X, were invited to comment on this proposal during an eight-week consultation period. Mrs P responded on his behalf. She strongly felt that vulnerable people should not be financially penalised for the Council’s budgetary problems. She made alternative suggestions to address these. She says her comments were ignored.
12. The Council amended its charging policy, effective from September 2025. This meant many service users, including Mr X, had to pay more for their care.
13. Mrs P says Mr X’s increased charge meant he did not have enough money to live on. She asked the Council to assess his disability related expenditure. As a result of this assessment, Mr P was charged less than before the Council changed its policy.
14. In response to our preliminary enquiries, the Council acknowledged this assessment was incorrect but agreed to honour the outcome for twelve months.
15. The Council also told the Ombudsman there was ongoing court action in the Administrative Court about the legality of the changes it made to the charging policy.

Analysis

16. I have ended my investigation into Mr X’s complaint for the following reasons.
17. In response to our enquiries, the Council explained there is ongoing court action about the changes to its charging policy. The courts have made it clear that the Ombudsman should not conduct an investigation which might trespass in any way on the jurisdiction of the courts of law. (R v Local Commissioner etc, ex parte Bradford MCC [1979] QB 287).
18. I consider Mr X’s complaint about the Council’s failure to properly consider Mrs P’s response made during the consultation exercise is so closely linked to the issues before the Administrative Court that it would not be appropriate for the Ombudsman to investigate.
19. Although the Council has accepted the disability related expenditure assessment was incorrect, it has agreed any possible changes to Mr X’s charge for care services will not be made for 12 months. Because Mr X has not been financially disadvantaged by the need for another assessment, there is no significant personal injustice that warrants an investigation by the Ombudsman.

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Final decision

20. I have ended my investigation because there is ongoing court action about the Council’s charging policy and there is no outstanding significant injustice to Mr X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman