Summary: Mr B says the Council delayed invoicing him for outstanding client contributions. There is evidence the Council delayed telling Mr B about some of the arrears due but for the rest there is no evidence Mr B told the Council he had received a backdated benefit award. The Council failed to complete an annual financial assessment in 2023 and failed to consider whether to exercise its discretion to waive or reduce the arrears. The Council’s failures caused Mr B distress and left him with arrears. An apology to Mr B, agreement to write off some of the arrears and consideration of what to do with the remaining arrears is satisfactory remedy.

The complaint

1. The complainant, Mr B is represented by his mother, Ms C. Ms C complained the Council:
• delayed sending Mr B an invoice for outstanding client contributions when she told the Council in January 2022 about the increase in benefit; and
• contributed to the accumulation of arrears by failing to carry out a financial assessment every year.
2. Ms C says the Council’s actions have caused her and Mr B significant stress and Mr B has no spare income to pay any backdated charges.

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The Ombudsman’s role and powers

3. 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)
4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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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What I have and have not investigated

6. I have investigated what has happened since 2022 as I am satisfied Mr B did not know about the backdated charges until 2024.

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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and Ms C's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Mr B, Ms C and the organisation 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

Care and Support Statutory Guidance (the guidance)

9. The Care Act provides a single legal framework for charging for care and support. It enables a local authority to decide whether or not to charge a person when it is arranging to meet a person’s care and support needs or a carer’s support needs.
10. Where a local authority has decided to charge, except where a light touch assessment is permissible, it must carry out a financial assessment of what the person can afford to pay and, once complete, it must give a written record of that assessment to the person.
11. In carrying out the assessment, the local authority must have regard to the detailed guidance set out in annexes B and C to the guidance that sets out how both capital and income should be treated. A local authority must regularly reassess a person’s ability to meet the cost of any charges to take account of any changes to their resources. This is likely to be on an annual basis, but may vary according to individual circumstances. However, this should take place if there is a change in circumstance or at the request of the person.
12. Because a person who receives care and support outside a care home will need to pay their daily living costs such as rent, food and utilities, the charging rules must ensure they have enough money to meet these costs. After charging, a person must be left with the minimum income guarantee (MIG).

What happened

13. Mr B receives a care package and pays a contribution towards that care package. Because of that he is left with the minimum income guarantee.
14. In 2020 the Council suggested Mr B apply for a health allowance top up to his benefits. Mr B applied for that. In January 2022 Ms C told the Council Mr B had been awarded the health allowance from November 2021. The Council said it would complete a financial assessment.
15. The Council wrote to Mr B on 15 February 2022 to tell him about the new charge (client contribution) because of the award of extra benefit. Ms C provided the Council with details of disability related expenditure. After considering that the Council wrote to Mr B on 17 July to confirm the charge after deducting disability related expenditure.
16. Ms C appealed against some of the disability related expenditure that the Council had disallowed. The Council wrote Mr B in November 2022 to confirm the financial assessment after considering his disability related expenditure.
17. In July 2024 Ms C contacted the Council to say Mr B had not been contacted for a financial assessment. Ms C told the Council the increase in benefit had been backdated to April 2020.
18. The Council carried out an assessment to take into account the backdated benefit award. The Council sent Mr B an invoice for £4,690.34 in September 2024. The Council sent Mr B a further breakdown of arrears totalling £5,257.97 in October 2024. The Council said Mr B should set up a weekly standing order of whatever he could afford on top of his assessed contribution to start to clear the arrears.

Analysis

19. Ms C says the Council delayed invoicing Mr B for outstanding client contributions. Ms C says she told the Council when Mr B began receiving an increase in benefit but the Council delayed applying that increase to the assessment. Ms C says because the Council did not carry out an annual financial assessment, as it is supposed to do, Mr B was faced with a significant financial bill. Ms C says because Mr B only receives the minimum income guarantee it is not possible for him to pay the arrears now asked for.
20. The evidence I have seen satisfies me Ms C told the Council when Mr B started receiving an increased amount of benefit. The documentary evidence shows Mr B gave the Council that information in January 2022. I am also satisfied the Council acted on that information by completing a reassessment in February 2022 and told Ms C about the reassessed client contribution. I say that because there is evidence of communications between Ms C and the Council about the amount of disability related expenditure the Council would allow from that assessment. All that satisfies me the Council acted on the information Ms C provided in January 2022.
21. However, it appears based on the invoice the Council sent Mr B in 2024 it failed to apply the increase from November 2021. Instead, the Council seems to have charged the new amount only from February 2022. That meant when the Council billed Mr B for the arrears in 2024 it included an extra £567.64 for the period November 2021-February 2022. I am satisfied that part of the bill was delayed due to fault by the Council as it had the information about when the increase in benefit applied from in February 2022. I therefore recommended the Council waive that £567.64 and remove it from the outstanding arrears. The Council has agreed to my recommendation.
22. I am satisfied the rest of the arrears have arisen because Mr B’s increased benefit award was subsequently backdated to January 2020. The documentary evidence shows Ms C told the Council she had asked for the award to be backdated in January 2022. However, I have seen no evidence when the Department for Work and Pensions backdated the benefit increase to January 2020 Mr B or his representative told the Council about that increase. As far as I can see there is no evidence the Council knew about that increase until July 2024. I therefore consider it is the failure to tell the Council about the backdated award that resulted in arrears in 2024, rather than the Council failing to act on information Ms C provided.
23. The Council accepts though when Ms C told it she had asked for the benefit award to be backdated it did not ask her to tell the Council if that were awarded. There is also no evidence the Council made clear to Mr B or Ms C that any backdated award would likely result in charges. Failure to do that is fault. I am also concerned to note the Council did not carry out an annual financial assessment in 2023. That again delayed matters until 2024.
24. Given Ms C told the Council about the backdating in 2024 I consider it likely if the Council had completed a financial assessment in 2023 she would have told the Council about the backdated award. That would not have affected the amount of arrears outstanding. However, it is possible Mr B would have kept some of the backdated benefit to cover some or all of the bill. That is an important factor to consider as Mr B only receives the minimum income guarantee.
25. I have considered the fact Mr B and his representative were responsible for telling the Council when they received a backdated award and that they should have known any backdated award would affect the amount Mr B would have to pay. However, I have also considered the fact the Council made no further checks with Mr B or his representative and failed to carry out a financial assessment in 2023. There is also no evidence the Council considered whether to exercise its discretion to waive some or all of the arrears given Mr B only receives the minimum income guarantee.
26. Taking all that into account I consider a reasonable outcome would be for the Council to apologise to Mr B and Ms C and write off 50% of the invoice which relates to the backdated period April 2020-November 2021. I also recommended the Council consider whether it should use its discretion to waive or reduce the arrears further, taking into account that Mr B is on the minimum income guarantee and what the guidance says, which I refer to in paragraph 12. If the Council decides it should recover the remaining arrears it should discuss with Mr B and Ms C a realistic payment plan. The Council has agreed to my recommendations.

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Action

27. Within one month of my decision the Council should:
• apologise to Mr B and Ms C for the distress they experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• agree to write off the arrears which relate to November 2021-February 2022 and to write off 50% of the remaining arrears.
• consider whether to use its discretion to write off the remaining arrears. The Council should then meet with Mr B and Mr C to explain its decision and to discuss a realistic payment plan, should any arrears remain.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. I find fault causing injustice. The Council has agreed actions to address the injustice.

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Investigator's decision on behalf of the Ombudsman