Summary: Ms Y complained about how the Council charged her son, Mr X, for a contribution to his care and support and tried to collect a debt from him. There was fault in how the Council communicated with Mr X and Ms Y, with some of the action it took to recover the debt and how it assessed Mr X’s claim for some expenses. This caused Ms Y some avoidable distress. The Council agreed to apologise, pay Ms Y a financial remedy and reassess Mr X’s contribution. It also agreed to review some of its practices.

The complaint

1. Ms Y complains on behalf of her son, Mr X, about how the Council has charged him for his home care. She says the Council:
• wrongly assured her Mr X would not have to make a contribution to his care costs;
• failed to involve Mr X or her in its later financial assessments, or notify her of the contributions it had decided Mr X should make;
• failed to tell her that Mr X had a debt building over a period of several years;
• was threatening and intimidating in how it tried to collect the debt, including trying to visit her at home unannounced and having an officer she had complained about attend further meetings with her; and
• wrongly refused her requests for disability-related expenditure for Mr X.
2. As a result, Mrs Y says Mr X has been left with a substantial debt, care costs he cannot afford and she has been caused significant distress. She wants the Council to write off the debt, allow Mr X’s extra expenditure and apologise for how it contacted her.

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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 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We may investigate a complaint on behalf of someone who cannot authorise someone to act for them. The complaint may be made by:
• their personal representative (if they have one), or
• someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)
7. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available, relevant evidence and decide what was more likely to have happened.
8. 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

9. I considered evidence provided by Ms Y and the Council as well as relevant law, policy and guidance.
10. Ms Y 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 adult social care

11. 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)
12. The regulations say councils should make allowances for any “housing-related costs which [the person] is liable to meet [for] their main or only home”. This includes any rent, ground rent, council tax or service charges. (Care and Support (Charging and Assessment of Resources) Regulations 2014, Schedule 1, paragraph 2)
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 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.

Background

14. Mr X has significant social care needs. He receives a package of care and support from the Council. Mr X lives with his mother, Ms Y, who also provides care and support for Mr X.
15. Due to his disabilities and care needs, Mr X is not able to manage his own finances or make most decisions for himself. He relies on Ms Y to do this for him.
16. In 2019 the Council carried out a review of Mr X’s care and support, and how Mr X received his care changed. As part of this the Council reassessed Mr X’s financial position and told him, and Ms Y, that he needed to make a contribution towards the costs of his care.
17. Ms Y disagreed Mr X could afford to pay towards the costs of his care. She told the Council all Mr X’s income went towards the costs of the home they shared.
18. Since 2019, the Council has been sending Mr X invoices for his contribution. It also reassessed Mr X;s contribution several times based on yearly increases to his benefits. The Council said it had written to Mr X many times since 2019 but neither he nor Ms Y responded to most of its letters.
19. In mid-2023 the Council contacted Ms Y about the debt which had built up due to the unpaid invoices.
20. Ms Y complained to the Council about its expectation that Mr X should pay towards his care, that it had let the debt build up and how it dealt with her when trying to collect the debt.

My findings

21. We can only normally investigate complains about events which happened more than 12 months before someone complained to us if we decide there are good reasons. However, I am satisfied the person affected by the events Ms Y complains about, Mr X, could not understand he had reason to complain. Therefore, the normal 12-month time limit does not apply to Mr X and I can consider events back to 2019.
22. I am also satisfied Mr X cannot authorise someone to bring the complaint on his behalf, and that Ms Y is a suitable person to do this for him.

Assurances about Mr X’s contributions to his care costs

23. On the balance of probabilities, I am satisfied the Council did not give Ms Y any assurances that Mr X would not have to pay anything towards his care.
24. The evidence shows the Council made it clear to Ms Y, since 2018, that Mr X would be expected to contribute to the costs of his care, based on a financial assessment:
• Case notes of emails and discussions between Ms Y and the Council from 2018 show that Ms Y understood the Council expected Mr X to pay towards his care, and that Ms Y disagreed with this.
• Mr X’s care plan which was shared with Mr Y at the time clearly said that Mr X would need to pay something towards his care costs, based on a financial assessment by the Council.
• Further emails between the Council and Ms Y in 2020 shows that Ms Y understood the Council expected Mr X to pay towards the costs of his care.
25. The Council was consistent in its communications with Ms Y that Mr X would need to pay something towards the costs of his care. Any assumption Ms Y made that he would not need to do so was not based on what the Council had been telling her.

Communication with Mr X and Ms Y about financial assessments and contributions

26. The evidence shows Ms Y was involved in the 2019 financial assessment. She completed and signed the financial assessment forms in late 2019. Ms Y knew about the outcome of that assessment; she disputed this with the Council in early 2020.
27. In the subsequent years, I am satisfied the Council sent further forms to Mr X asking for updates about his income. However, the Council says it did not receive responses to these requests, so it relied on information it had and information about yearly increases to be benefits Mr X received.
28. Ms Y said she did not know about the financial assessments or the invoices the Council was sending to Mr X because she did not open post addressed to Mr X.
29. It was not fault for the Council to write to Mr X about his contributions. Although Mr X lacked the ability to understand or manage his own finances, he was an adult and the person liable to make those contributions. There is no evidence Ms Y asked the Council to send any letters addressed to her before mid-2023. It was reasonable for the Council to assume, at least at first, that Ms Y would open and manage Mr X’s post, since he was not able to and she had taken responsibility for his finances.
30. However, there is no evidence the Council took steps to try to contact Ms Y when it consistently did not get any responses to its letters to Mr X. The Council undertook several financial reassessments without any input from Mr X or anyone on his behalf. Given the Council knew about Mr X’s inability to understand or manage his finances, it should have considered other steps to make contact with Ms Y when it got not responses from Mr X over several years. The Council’s failure to do so was fault.
31. I do not, however, consider this caused any injustice to Mr X. Since Mr X’s income was disability benefits, it is unlikely outcome of the financial assessments would have been different had the Council done more to contact or involve Ms Y. It is also unlikely Ms Y would have arranged for Mr X to pay any of the invoices, given her strong belief that Mr X cannot afford to pay towards his care costs.

Delays in informing Ms Y about Mr X’s debt

32. From the Council’s records, it sent Mr X 155 letters between 2018 and mid 2023 chasing payments of invoices it had sent him for contributions towards his care costs. The Council did not receive any responses to these.
33. Again, it was not fault for the Council to have addressed these letters to Mr X at the address he shared with Ms Y. Mr X was the person liable to pay the charges and for the increasing debt.
34. However, as with the financial assessments, the Council should have taken steps much sooner to bring the debt to Ms Y’s attention. It knew about Mr X’s needs and that Ms Y was the person who managed his finances. There is no evidence the Council tried to bring the debt to Ms Y’s attention until mid-2023. That significant delay was fault.
35. Similar to the financial assessments, I do not consider this caused an injustice to Mr X. Mr X does not know and cannot understand that he now owes a significant sum. On the balance of probabilities, I also consider it unlikely that Ms Y would have taken steps for Mr X to pay the charges or debt if the Council had contacted her directly sooner.
36. However, I do consider the delay led to a difference in how the Council engaged with Ms Y about the debt. The Council makes several references in its contact with Ms Y about the amount of money owed. On the balance of probabilities, I consider the amount of debt likely had an impact on the views of the officer recovering the debt. If the Council had tried to recover the money sooner, when the debt was much lower, it would likely have treated and communicated with Ms Y differently.

How the Council tried to collect the debt

37. There was no fault with the Council’s decision to try to recover the debt from Mr X. It has a duty to ensure public money is used appropriately and those who owe the Council money pay what they owe.
38. However, I do consider there was some fault in how the Council engaged with Ms Y over Mr X’s debt:
• An officer who spoke to Ms Y made an inappropriate comparison between Ms Y’s and the officer’s personal circumstances. While the Council says this was an effort to build rapport with Ms Y, I still consider a personal comparison of that nature, in the circumstances, to be fault.
• Officers from the Council attended Mr X and Ms Y’s property in person, without telling Ms Y in advance. Given what the Council knew about Mr X’s needs, the Council has accepted it should not have visited in the way it did. I am satisfied that was fault.
• After Ms Y complained about the conduct of the officer she spoke with, that officer attended a meeting to discuss Ms Y’s wider complaints. Ms Y did not know the officer would be attending and felt intimidated by this. I consider the Council’s decision to have that officer attend the meeting was also fault.
• The Council did not follow its own collections process, which says the Council will try to contact people by phone if the debt exceeds £500. There is no evidence the Council tried to contact Mr X, or Ms Y given Mr X’s needs, between 2019 and mid-2023.
39. I accept Ms Y found the overall tone of the Council’s contact with her about the debt to have been intimidating. While there is no evidence to suggest this was intentional on the Council’s part, I am satisfied having let the debt grow to the level it had likely influenced the Council’s approach. Therefore, I am satisfied the Council caused Ms Y some avoidable distress.
40. I do not consider the Council was threatening in the way it engaged with Ms Y. It was appropriate for the Council to share, with Ms Y, its concerns that she was not managing Mr X’s money properly by not paying his assessed contributions. I have seen no evidence the Council suggested it might try to remove Mr X from Ms Y’s care or said anything to Ms Y that would reasonably lead her to believe this.

Disability related expenditure and other costs

41. It is not our role to decide whether the disability related expenditure (DRE) Ms Y claimed Mr X pays should be allowed; that is the Council’s responsibility. Our role is to assess whether the Council made its decisions about this properly. We cannot question a decision the Council has made if it followed the right steps and considered relevant evidence.
42. For most of the DRE Ms Y claimed, I am satisfied the Council has properly considered the guidance and evidence Ms Y provided. It has explained why it has not allowed most of the items it has.
43. However, there are some items where I consider there was fault in how the Council decided whether they should be allowed:
• Washing and utility costs – In its decision, the Council referred to using guidance from a national advisory body (‘advisory guidance’). The guidance is not issued by the Government and is not statutory guidance. When using the guidance the Council said that the amounts in the guidance were the maximum it could allow. That is not correct. It is for the Council to decide how much it can allow. It can take an guidance into account, but it cannot apply this rigidly, such as consider the guidance amounts as maximum amounts. I am satisfied the Council used the guidance as maximum amounts and that was fault.
• Wheelchair costs – The Council said a wheelchair for Mr X was a health related cost and could not be allowed as a DRE. However, the advisory guidance includes amounts for replacements of wheelchairs. On the balance of probabilities, I am satisfied the Council took a fixed view to wheelchair costs and that was fault. While Ms Y told the Council Mr X was not eligible for a wheelchair from the NHS, the Council did not ask her for any evidence about this or the reasons why Mr X needed to buy his own wheelchair.
• Camera and Fridge – The Council did not give reasons for not allowing these items, so I cannot tell whether it has considered them properly.
44. Ms Y also claims that Mr X contributes much of his earnings towards the costs of the family home, since this is larger than it would otherwise need to be to allow space for Mr X’s needs. The law says councils should allow for any “rent” payments someone makes. Although Ms Y has provided details of the costs she says Mr X pays, I have not seen any evidence the Council has ever properly considered whether any payments Mr X makes should count as “rent”.
45. The Council should reassess Mr X’s contribution and claims for DRE, properly deciding for each item whether it should be allowed under the statutory guidance, and without applying any fixed limits or amounts.

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Action

46. Within one month of my final decision the Council will:
• apologise to Ms Y for the avoidable distress caused by how it attempted to collect Mr X’s debt and for not contacting her about this sooner;
• pay Ms Y £300 to recognise that distress; and
• reassess Mr X’s contribution to his care and support, taking into account the fault I have found above, and addressing whether any of Mr X’s income should be ignored as housing-related costs.
47. Within three months of my final decision the Council will:
• review its approach to assessing Disability Related Expenditure to ensure it considers each claim on its individual merits and does not apply any fixed or rigid rules, including not applying any guidance it uses rigidly; and
• review how it monitors outstanding care charges to ensure it does not allow debts to grow without considering taking further action, especially when it does not receive responses to its letters.
48. The Council should provide us with evidence it has complied with the above actions.
49. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
50. I would also have recommended the Council reviewed is debt collection practices, including the use of home visits. However, the Council has already done this and made several changes to its debt collection processes to prevent unannounced visits when collecting adult social care debt in future.

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Decision

51. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman