Summary: Mr X complained that since 2012, the Council failed to pay him his full personal budget for his assessed care needs. The Council was not at fault.

The complaint

1. Mr X complained that since 2012, the Council has not paid him his full personal budget for his assessed care needs. Mr X said the Council expects him to contribute to his care to make up this shortfall. Mr X said all his income already goes on his care. He wants the Council to backdate his direct payments and to pay for all the hours of care it has assessed him as needing.

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What I have investigated

2. The Ombudsman would generally expect complainants to bring complaints to us within 12 months of them becoming aware of the issues that they complain of. I have used my discretion to investigate Mr X’s complaint from 2017. This is because Mr X is disabled and suffered from ill health, which he said contributed to the delay in bringing his complaint to the Ombudsman.

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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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a council’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

5. I discussed the complaint with Mr X and considered his financial assessments and care and support plans since 2017.
6. I referred to the Council’s consultation documents on its decision to amend its ‘Fairer Charging Policy’ and the Care Act 2014.
7. Mr X and the Council both had the opportunity to comment on my draft decision.

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What I found

8. In 2014, the Government introduced the Care Act. This legislation replaced all previous guidance about how councils assess and provide care for adults in need. It includes guidance on charging for care.
9. The Care Act states councils have discretion to charge people for the care they receive. If a council decides to charge for care, it must complete a financial assessment. If a person refuses a financial assessment, they must self-fund their care.
10. Councils can consider both capital and weekly income when completing financial assessments. If a person needs care to stay in their own home, the means test will not include the value of their property.
11. Weekly income includes state benefits such as:
• Personal Independence Payment;
• Attendance Allowance (care component);
• Disability Living Allowance (care component) and
• retirement pensions.
12. The Council assesses a person’s contribution to their care by totalling their weekly income and then deducting:
• The minimum income guarantee - this is a standard allowance set by the Government and is what it considers to be the minimum amount of money a person needs. For a person over the age of 60 this is £189.00 weekly.
• Disability related expenditure - includes costs such as clothing, equipment and laundry. The Council deducts these allowances from a person’s overall weekly income; the remaining figure is the amount the person must pay for their care.
• Housing costs - such as rent, mortgage, or council tax if this is applicable.

Direct payments

13. Direct payments are one way for a person, who has been assessed as eligible to receive support from adult social care, to receive their personal budgets. The Council makes cash payments to a person with eligible care needs, instead of providing them with care services. They give people control and choice over their care arrangements, and lets people have greater flexibility and independence.
14. The Council’s policy states people who are assessed to pay a contribution towards the cost of their support must either arrange to pay the amount into their direct payment account or to their managed payroll provider.

What happened

15. Mr X has received direct payments since 2002. When he first started to receive direct payments, he did not have to contribute towards the cost of his care.
16. Since 2012, the Council assessed Mr X as needing 30.5 hours of care a week. The Council and Mr X reached that agreement following arbitration.
17. Following the introduction of the Care Act 2014, the Council consulted about how it assessed people’s contributions to their care, as people were contributing different amounts because of the different benefits they received.
18. The Council decided to remove a disregard previously applied to the Disability Living Allowance care component. That meant the Council would include it as part of a person’s weekly income.
19. In 2017, the Council completed an annual review of Mr X’s care needs. The Council assessed Mr X as needing 30.5 hours of care. Mr X asked for an increase in hours to meet his care needs, however the Council refused. It said Mr X had not been paying his contribution of £41.35 a week. That meant he was short of 3.5 hours a week care. The Council said Mr X needed to make his contribution to his personal budget, then it could assess if he needed more care hours. Mr X said he should not have to contribute to his care because he signed an old contract that said he did not need to contribute.
20. In July 2017, the Council sent Mr X his financial assessment starting in October 2017. Because of the changes in its policy, his contribution to his personal budget had increased to £68 weekly. The Council told Mr X that if he did not contribute to his care costs it would consider replacing his direct payments with commissioned care. Mr X continued to refuse to pay his contributions to his personal budget.
21. Mr X complained to the Council in January 2018 and escalated it to stage two in May 2018. Mr X complained that the Council’s claim he received 30.5 hours of care a week was false, as it included the amount calculated in his personal budget. Therefore, he said the Council were not providing the level of care as agreed in arbitration in 2012.
22. The Council responded and referred to the direct payment Mr X had signed in 2002 in which he agreed “to the charge for my community care services to be deducted from my payment”. The Council explained that it completed its financial assessments in line with the Care Act 2014 and that Mr X must make his contribution to his share of his care costs. It said that Mr X did not have to pay his contribution into the same account in which he received the direct payment, but he needed to evidence to the Council he was making it. The Council did not uphold his complaint.
23. In 2018, the Council reviewed Mr X’s financial assessment. It told him he needed to contribute £76.69 to his care. That increased to £84.68 in 2019.
24. In March 2019, Mr X complained to the Ombudsman as he was unhappy the Council were not providing the personal budget to cover his assessed care needs.
25. In response to my draft decision, Mr X said the Council did not consider all his expenditure when it completed his financial assessments. He said all his money is spent on his care and support needs. The Council told me Mr X would not participate in a financial assessment while his complaint remains unresolved. Therefore, the Council used the information it had to complete his financial assessment.

My findings

26. When Mr X first started to receive direct payments, he was not assessed as needing to financially contribute towards his care. However, since 2002, there have been changes in how councils assess people’s contributions to adult social care. The Care Act 2014 is the most recent legislation which councils must use. Within this, the Council is entitled to consider Mr X’s weekly income and ask him to contribute towards his care.
27. In 2016, the Council consulted about changes in assessing people’s contributions to care. This resulted in a change in policy for people receiving disability living allowance. The Council was entitled to review its policy to reflect the Care Act 2014 guidance. The Council was not at fault.
28. The Council’s financial assessments of Mr X show it considered all disability related expenditure and the minimum income guarantee before it assessed Mr X’s contribution to his care. The Council used the financial information it had on record to complete these financial assessments. The Council was not at fault.
29. The Council will not assess Mr X for more hours of care as it said he is not paying his own contribution to the hours already allocated therefore there is a weekly shortfall in care being provided. The Council said it will review that decision after Mr X evidences or starts to pay his contributions to his personal budget. There is no fault in the Council’s decision.

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Final decision

30. The Council was not at fault in asking Mr X to make contributions towards his care therefore I have completed my investigation

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Parts of the complaint that I did not investigate

31. Mr X complained about deductions the Council has made since 2012. I have not investigated this part of Mr X’s complaint as it is late.

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Investigator's decision on behalf of the Ombudsman