Summary: Mrs X complained on behalf of Mr A about the Council’s delay in deciding his financial contribution to his care costs, and its policy to cap disability related expenditure to the amount of his disability benefit. We find the Council’s delay and policy to adopt a blanket approach was fault which caused distress and might have caused it to overcharge Mr A. The Council has agreed to apologise, make a symbolic payment, recalculate Mr A’s financial contribution and reimburse any overcharges, and amend its policy.

The complaint

1. Mrs X complains about the way the Council handled the assessment of the financial contributions her adult son Mr A had to pay for his care provision. In particular she complains:

• The Council took too long to assess and decide Mr A’s financial contribution to his care costs.
• The Council’s policy incorrectly capped the amount of disability related expenditure (DRE) to the disability benefit Mr A received, which meant his financial contribution was too high.

2. Mrs X says the delay resulted in distress and uncertainty, and resulted in Mr A paying a higher financial contribution to his care than he should. Mrs X would like the Council to accept its policy is wrong and reassess Mr A’s financial contribution without limiting his disability related expenditure.

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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 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)

5. 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. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.
7. 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(1), as amended)

What I have and have not investigated

8. I have investigated the time it took the Council to decide Mr A’s assessed financial contribution from September 2023 until it was finalised in August 2024. I have also investigated its decision to cap the amount of DRE to the same amount as the disability benefit Mr A received.
9. Mrs X took more than 12 months to complain about the period before January 2024. That period is therefore late. Mr A could not have made the complaint earlier because he relied on Mrs X to complain on his behalf. I have decided that is a good reason to investigate the late part.
10. Mrs X complained to the Council in 2024 about several other matters. I have taken these matters into account in investigating the time it took the Council to decide Mr A’s financial contribution. However I have not investigated the matters directly because the Council resolved them without them causing significant injustice.

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How I considered this complaint

11. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
12. Mrs X 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

Relevant law and guidance

Charging for non-residential social care services: the power to charge

13. 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)
14. 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 treat each person individually. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.

Disability Related Expenditure and minimum income guarantee

15. 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.
16. 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 (the 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.
17. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by national government and reviewed each year. A council can allow people to keep more than the MIG. (Care Act 2014)
18. Complaints about the level of charge levied by a local authority are subject to the usual care and support complaints procedure as set out in The Local Authority Social Services and NHS Complaints (England) Regulations 2009.

What happened

19. This is a summary of the key events. It is not a complete chronology of everything that happened. Where necessary, I have described some of these events in more detail in the “Analysis” section of this decision statement.
20. On 27 September 2023 we issued a previous decision related to this complaint. At that time Mrs X told us the Council had agreed to reconsider elements of Mr A’s DRE and financial contribution.
21. The Council said it contacted Mrs X in October and November to arrange a date to review Mr A’s care needs. It says Mrs X postponed the date twice.
22. On 25 January 2024 the Council commenced a review of Mr A’s care needs. The Council did not send Mrs X any record of the review at that point.
23. On 11 March Mrs X complained to the Council. The complaint was about several detailed matters regarding elements that she said should be included as DRE, and the excessive delay in deciding Mr A’s financial contribution.
24. Later in March the Council completed the assessment report from the care needs review in January. It recorded it was not possible to complete the payment part due to the ongoing appeal regarding the financial charges. It sent a copy of the report to Mrs X.
25. On 27 June the Council responded to Mrs X’s complaint from 11 March. The letter was dated 3 May, but it was not sent to Mrs X until she chased it up. It upheld some elements that Mrs X had said should be included as DRE, and did not uphold others. It requested further information from Mrs X about the elements it upheld. It needed this information to finalise the calculation of Mr A’s financial contribution.
26. In early July Mrs X responded to the Council. She complained about the delay in sending the letter dated 3 May. She provided the information it had requested. She contacted the Council again at the end of July and chased up the assessment of Mr A’s financial contribution.
27. The Council sent Mrs X its recalculation of Mr A’s financial contribution on 14 August. It calculated his weekly financial contribution as £6.52 backdated from the start date of his care until 18 August, and £7.63 from that date forward.
28. The calculation showed the Council had capped Mr A’s DRE to the amount of an element of his disability benefit, despite calculating the actual DRE as being above that amount. If the Council had not capped Mr A’s DRE in this way, his financial contribution would likely have been zero.
29. Mrs X promptly emailed the Council and complained it was wrong to cap DRE to Mr A’s disability benefit. The Council referred to its policy. Mrs X and the Council exchanged emails in which they disagreed about whether the Council’s policy followed the statutory guidance. The Council considered Mrs X’s concerns under its complaint procedure.
30. The Council responded to Mrs X’s complaint on 13 September. It found its policy and decision making were correct and did not uphold her complaint.
31. Mrs X complained to us on 8 January 2025.

Analysis

The complaint about delay

32. I find no fault in the Council’s actions from the date of our previous decision, at the end of September 2023, until the end of January 2024 when it started the review of Mr A's care needs.
33. This is because it was reasonable for the Council to decide to review Mr A’s care needs before it assessed his financial contribution to the cost of meeting those needs. There is evidence it took reasonable steps to try to arrange the review. I see no evidence it could have conducted it before the end of January 2024.
34. However, after conducting the review in January, I have seen no evidence the Council took effective steps to resolve the appeal about Mr A’s DRE and financial contribution until the end of June when it responded to Mrs X’s complaint. I find the five month period between January and June was an unacceptable delay and was therefore fault. This caused Mrs X avoidable distress and uncertainty.
35. I recommend the Council apologise and make a symbolic payment of £150 for the distress caused by the delay.
36. Mrs X sent the Council the information it had requested at the beginning of July. The Council then completed its calculation of Mr A’s financial contribution and finalised the appeal in the middle of August. I have considered the relatively complex nature of the appeal and find no fault in the time it took the Council to finalise its calculations.

The complaint about the Council’s policy to cap DRE to the level of disability benefit

37. The Council’s policy states it “will seek to ensure that it is equitable when making allowance for disability-related costs, in that it will only allow a total level of DRE allowances that equate to the total level of disability benefit received by the person. This is in line with Care Act Statutory Guidance (Annex C) which states that “where disability-related benefits are taken into account, the local authority should make an assessment and allow the person to keep enough benefit to pay for necessary disability-related expenditure to meet any needs which are not being met by the local authority.””
38. I have carefully considered the Council’s policy against the statutory guidance, including paragraph 8.42, and Annex C paragraphs 39 - 41 and 49. These parts of the guidance focus on DRE where disability-related benefits are taken into account, the amount of benefit or money a person should keep to pay for disability-related costs, and the minimum income guarantee.
39. I have decided there is nothing in the statutory guidance that states the Council should adopt a blanket policy to cap DRE to the level of a person’s disability benefit. I note the Council’s policy indicates the statutory guidance states DRE only should be included up to the amount of disability benefit. However, I do not agree that is what the guidance states. As noted in paragraph 16, the statutory guidance sets out a list of examples of DRE and says any reasonable additional costs directly related to a person's disability should be included. The Council did not include all reasonable additional costs in this case because it explicitly did not include any DRE above the value of Mr A’s disability benefit.
40. For this reason I find the Council has adopted a blanket policy. I therefore find it at fault because it has fettered its discretion as laid out in paragraph 6. This caused Mrs X distress in the form of inconvenience and frustration when she raised concerns about its decision, and uncertainty regarding Mr A’s finances. It is also and is likely to have caused Mr A to be charged more than he should have.
41. I recommend the Council apologise, make a symbolic payment of £150 for the distress caused by it fettering its discretion, and reassess the calculations it carried out of Mr A’s care charges in August 2024 without applying the cap on his DRE. If it calculates it has asked Mr A for a higher financial contribution than it should, it should reimburse him the difference.
42. I also recommend the Council amend its policy to address this fault.

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Action

43. Within four weeks of the date of the final decision the Council will:
1. Apologise to Mr A and Mrs X for the distress caused by the delay and fettering its discretion. 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.
2. Make a symbolic payment of £300 to Mr A to acknowledge the distress.
3. Recalculate Mr A’s financial contributions without capping his DRE to the level of his disability benefit. If it calculates it has asked Mr A for a higher financial contribution than it should, it should reimburse him the difference.
44. Within 12 weeks of the date of the final decision the Council will:
1. Amend its policy, specifically paragraph 5.10 bullet point v., to ensure it no longer fetters its discretion by only allowing a total level of DRE allowances that equate to the total level of disability benefit received by the person.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. For the reasons explained in the analysis section we find the Council at fault for its delay and decision to cap DRE when calculating Mr A’s financial contribution to his care which caused injustice. We therefore uphold the complaint. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman