Summary: Mrs E complains the Council has failed to properly assess charges for her son’s adult social care. He now has a large debt which is unaffordable. There was no fault in how the Council made its decision, or considered Mrs E’s appeal. This means we cannot consider the merits of the decision.

The complaint

1. Mrs E complains on behalf of her son (Mr F). She complains the Council failed to properly consider charges for adult social care, including whether to backdate disability related expenditure (DRE). Mr F has a large debt with the Council which is unaffordable. Mrs E says this is the Council’s fault, as it did not carry out annual reviews of Mr F’s care and support plan or his financial assessment, which she had requested several years before..
2. Mr F has cancelled care and support because of the costs, so his needs are not met. This is stressful. Mrs E wants the Council to reduce the backdated charges.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. 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)
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(1), as amended)

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How I considered this complaint

6. I considered evidence provided by Mrs E and the Council as well as relevant law, policy and guidance.
7. Mrs E 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

Legal and administrative background

Adult Social Care – the Care Act

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)
9. 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 not charge more than the cost it incurs to meet a person’s assessed eligible needs.
10. 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. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee. This is set by national government and reviewed each year. (Care Act 2014)
11. Councils can take disability-related benefits 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 DRE to meet any needs it is not meeting. The Care and Support Statutory Guidance sets out a list of examples of such expenditure.

The Council’s Adult Social Care Charging Policy

12. The Council’s Adult Social Care Charging Policy says:
• it does charge for care and support;

• it would carry out a financial assessment using the best information available and inform service users of their charge. Service users needed to tell the Council if the information was incorrect;
• service users needed to tell the Council of any changes in income within 21 days of the change, so the Council could complete a new financial assessment;
• if a service user did not tell the Council about any change of circumstance, and the change meant the Council had not charged them enough, the Council would usually ask the service user to pay the extra charges, going back to when the change happened. But it would review individual circumstances before deciding on any backdated charges;
• if service users were not sure whether the Council needed to know about a change, they should tell it anyway.

What happened

Background

13. Since 2021, Mr F has been receiving a direct payment to manage a package of care provided by the Council. He received assistance from a personal assistant (PA). Mrs E managed Mr F’s account on his behalf.
14. The Council sent letters to Mrs E at the start of the tax years in 2023 and 2024. These letters advised her of its financial calculation for Mr F’s care and showed he did not have any charges to pay. The letters advised Mrs E to report to it any changes of circumstances.
15. In early 2025 the Council became aware Mr F was receiving a welfare benefit from the Department of Work and Pensions that it had not been aware of. And that Mr F had been receiving the benefit for some time. Mrs E says she did not realise she needed to tell the Council about it, as the amount he received was less than she had received in benefits when Mr F was her dependent.
16. The Council recalculated Mr F’s assessment and sent revised calculations. These showed it should have been charging Mr F for part of the cost of his care, which meant he had a debt to the Council.
17. Around the same time, Mrs E cancelled the care and support provided by Mr F’s PA. She says she did this as she did not believe Mr F could afford the charges the Council was making and it refused to keep to the old arrangement while they appealed. She also says she and Mr F would never trust the Council again.
18. Mrs E appealed the Council’s decision, through its three stage process. During the process the Council agreed to add extra DRE to its calculation of Mr F’s means, if he should decide to ask for a new Care Act assessment. But, in line with its charging policy, it would not backdate those changes.
19. At a meeting for the last stage of the appeals process, the Council’s record says:
1. it invited Mrs E to present any exceptional circumstances;
2. it asked Mrs E to point out any omissions or errors;
3. Mrs E confirmed she had received the letters about the financial assessments.
20. After the meeting, the Council’s appeal panel decided:

• repayment of the charges would not cause undue hardship for Mr F;
• the calculation was accurate;
• it had considered all the evidence; so
• the charge was fair.

21. The Council offered Mr F a payment plan option and advised Mrs E she should contact the Council if she wished Mr F to have a fresh assessment of his care needs.

Analysis

22. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
23. I have considered the steps the Council took to consider the issue, and the information it took account of when deciding that Mr F owed the debt.
24. In making its decision, the Council took account of the relevant guidance, including its own ASC Charging Policy and what that says about backdating charges. It considered information from Mrs E and asked her if there was information it had missed and about any exceptional circumstances. It also offered to work with Mrs E and Mr F to find an affordable repayment programme. So the Council followed the appropriate procedures when making this decision. That means I cannot criticise it.
25. I have not investigated the question of whether the Council missed reviews, including the request for a financial review Mrs E said she made several years ago. Those reviews are too late for the Ombudsman to now consider (see paragraph 4). And in any case, Mrs E still had a duty to check the information the Council sent her (see paragraph 14) and advise it of anything that was incorrect or had changed.

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Decision

26. I find no fault.

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Investigator's decision on behalf of the Ombudsman