Summary: We will not investigate Mrs X’s complaint about how the Council has calculated Mr Y’s care fee contribution without taking account of payments to his personal pension scheme. There is not enough evidence of fault in the Council’s application of the relevant law and guidance to justify an investigation. We also cannot achieve the outcome Mrs X wants.

The complaint

1. Mrs X is Mrs Y’s stepmother. Mr Y is disabled, lives in a care placement and has been assessed by the Council to make a financial contribution to his care fees.
2. Mrs X complains the Council’s financial assessment of Mr Y failed to make provision to allow him to contribute to a personal pension. She says the current system disadvantages young low-income disabled people, when compared with those who are not disabled, by not giving them the ability to save into a private pension and have that money disregarded in care fee contribution calculations.
3. Mrs X wants the Council to take into account any private pension contributions he makes, disregarding it when calculating his care fee liability.

Back to top

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:

• there is not enough evidence of fault to justify investigating; or
• we cannot achieve the outcome someone wants.

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

Back to top

How I considered this complaint

5. I considered information from Mrs X, the relevant law and guidance, and the Ombudsman’s Assessment Code.

Back to top

My assessment

6. The current financial assessment process for councils to apply when calculating a service user’s contribution to care fees is set down in the Care Act 2014 and the related guidance notes, the Care and Support Statutory Guidance 2014, and the Care and Support (Charging and Assessment of Resources) Regulations 2014. The Statutory Guidance includes a list of types of capital which must be disregarded when assessing care fee contributions. There is no provision in the law or guidance for local authorities to disregard payments from a service user’s income into their personal pension scheme when making their fees calculation.
7. We recognise Mrs X accepts in her complaint that the Council has ‘technically done nothing wrong’ as they have followed the current guidelines, but that she considers the guidelines are wrong and must change. But we cannot find a council to be at fault for correctly applying legislation and statutory guidance set by national government because someone disagrees with them. There is not enough evidence of fault in the Council’s decision-making processes here when calculating Mr Y’s care fee contribution to warrant us investigating.
8. The outcome Mrs X wants is for the Council to disregard any private personal pension contributions Mr Y makes when determining his care fee contributions. It follows from the above that we cannot achieve that outcome here. National law and guidance on care fee assessments are outside our jurisdiction. If Mrs X wants them to change, this would be a matter for her to raise with her MP as her parliamentary representative.

Back to top

Final decision

9. We will not investigate Mrs X’s complaint because:
• there is not enough evidence of fault in the Council’s application of the relevant national law and guidance to Mr Y’s care fee assessment to warrant an investigation; and
• we cannot achieve the outcome she wants.

Back to top

Investigator's decision on behalf of the Ombudsman