North Yorkshire County Council (19 012 596)

Category : Adult care services > Direct payments

Decision : Upheld

Decision date : 02 Feb 2021

The Ombudsman's final decision:

Summary: There was fault in the way the Council assessed Mr and Mrs B’s income to decide what contribution Mr B had to pay towards his care package. There was poor communication about the decision making. The Council also did not properly consult before it changed its policy on how it calculated the contribution. The Council has agreed to apologise to Mr and Mrs B and offer them a new financial assessment and a financial remedy. The Council has already addressed the change in the policy and reversed the policy.

The complaint

  1. Mr and Mrs B complain about the Council’s decision to start charging a contribution from Mr B’s income in July 2019 to pay for his care at home. They disagree with the contribution as Mr B’s income has not changed. They say they did not receive notice or a proper explanation why the change happened. They say they have not received a satisfactory response to their complaint.

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The Ombudsman’s role and powers

  1. 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)
  2. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
  3. 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

  1. I have discussed the complaint with Mrs B. I have considered the documents that she and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

  1. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge. The Council also has its own policies.
  2. The CASS Guidance says the approach to charging should (among other things):
    • ensure that people are not charged more than it is reasonably practicable for them to pay;
    • be clear and transparent, so people know what they will be charged;
    • promote wellbeing, social inclusion, and support the vision of personalisation, independence, choice and control;

Financial assessment

Income

  1. Local authorities may take most of the benefits people receive into account as income.
  2. Some benefits, such as the mobility element of the Disability Living Allowance (DLA) or Personal Independence Payment (PIP). must be disregard as income (among others).
  3. The local authority has no power to assess couples or civil partners according to their joint resources. Each person must be treated individually.

Minimum Income Guarantee (MIG)

  1. Local authorities must ensure that a person’s income is not reduced below a specified level after charges have been deducted. This is called the Minimum Income Guarantee (MIG) and the amounts are set out in the regulations.
  2. The purpose of the MIG is to promote independence and social inclusion and ensure that a person has sufficient funds to meet their basic needs such as purchasing food, utility costs or insurance. This must be after any housing costs such as rent and council tax net of any benefits provided to support these costs – and after any disability related expenditure.
  3. The government publishes a circular each year which sets out what the MIG will be for that year. When the government first set the MIG in 2015, it used the basic levels of income support or the guaranteed credit element of pension credit plus a buffer of 25%. The government has not changed the MIG since 2015.
  4. The MIG is the minimum income amount the local authority has to adhere to, but local authorities have discretion to set a higher level in their charging policy.

Consultation

  1. Should a council consult the public if it changes its charging policy?
  2. There is no general duty for public authorities to consult those affected by their decisions, but a duty to consult may be imposed by statute or may arise because of the duty to act fairly.
  3. The demands of fairness are likely to be higher when an authority contemplates depriving someone of an existing benefit or advantage
  4. The CASS Guidance says:
    • Local authorities should develop and maintain a policy on how they wish to apply the discretion.
    • Local authorities should consult people with care and support needs when deciding how to exercise this discretion.

The Council’s policy

  1. The Council’s charging policy for community-based services for 2014/15 said it would deduct these amounts from the assessable income:
    • An amount for weekly living expenses. This is the amount they would receive if entitled to basic Income Support/Employment and Support Allowance/Pension Credit.
    • A buffer equal to 25% of the basic Income Support/Employment and Support Allowance/Pension Credit figure.
    • Some housing costs.
    • Disability related expenses.
  2. It said that, where benefits were paid to a couple, the amount would not be halved automatically. Instead the Council carried out a ‘better off’ calculation. The officer would carry out a ‘half couple’ assessment using 50% of the joint benefit award and a ‘couple’ assessment using 100% of the joint benefit award and use whichever calculation was better for the service user.
  3. The policy’s wording changed in 2017/18 as the Council said it would now deduct:
    • An amount for day-to-day living expenses. This weekly amount is set by Central Government each year according to a person’s age and condition plus other premiums paid according to the client’s personal circumstances.
    • An additional amount equal to 25% of the above.
    • Some housing costs.
    • Disability related expenses.
  4. In April 2019, the Council changed its financial assessments in two ways:
    • It no longer calculated a person’s individual MIG, based on the benefits. It applied the MIG as per the government circular.
    • It no longer offered a ‘better off’ calculation. When a half-couple assessment had been completed, it carried out an affordability check to ensure that the allowance was enough to maintain the joint financial resources above DWP minimum benefit levels.
  5. The Council then reversed its position in January 2020 and said it would offer couples the ‘better off’ calculation as it had done before. It wrote to all the residents who had been affected by the change and offered them another financial assessment with the ‘better off’ calculation. It said all re-assessments would have effect from the original date of the assessment and offered residents a refund if they had paid too much contribution between April 2019 and January 2020.

What happened

  1. Mr B had an accident in 2006 which left him with impaired sight and limited movement on the left side of his body. He also suffered damage to his brain which affected his memory. He required help and support in most aspects of daily life and Mrs B was his main carer.
  2. The Council provided a care plan which consisted of 38 hours of support a week by personal assistants and 6 weeks of respite breaks a year so that Mrs B had a break from her caring role.
  3. The Council provided direct payments to Mr and Mrs B so that they could organise the support themselves. Mr B did not pay a financial contribution towards the support package.
  4. The Council assessed Mr B’s finances in March 2016.
  5. The couple’s joint income was £373.96. This consisted of Mr B’s pensions and disability living allowance (care) and Mrs B’s carer’s allowance. Mrs B’s carer allowance was £62.10 and the rest of the income came from Mr B.
  6. The Council did the ‘better off’ calculation. As Mrs B’s income was very low, it was better for Mr and Mrs B to be assessed as a couple rather than assess Mr B on his own income
  7. The Council said the MIG for the couple was £331.81. As the Council also deducted other costs relating to housing and disability related expenditure, Mr B did not have to pay a contribution.
  8. The Council re-assessed Mr B’s finances on 29 July 2019. Mrs B had just started to receive a pension of £168 a week so her income had increased a lot.
  9. The Council assessed Mr B’s finances on his own and did not offer him a couple’s assessment. It applied the MIG from the government circular which was £144.30. Mr B’s income was £334.91 which meant that, even after deduction of other costs, he now had to make a contribution of £166.82 towards his care costs.
  10. Mrs B said the Council informed her of the increase of the contribution on 4 August 2019 and backdated the increase to the date of the assessment. Mr and Mrs B asked for the care package to be stopped until they could appeal the decision. The Council said Mr and Mrs B would need to make the personal assistants redundant. Mrs B said she asked for help in this process but was told that the Council could not assist as Mrs B was the employer. The process of redundancies took a few weeks to be completed and the Council then billed Mr and Mrs B £500 for the three weeks from 29 July 2019.
  11. Mrs B complained to the Council on 6 August 2019. She said the Council had told her that the increase was due to a review of its policy. She wanted an explanation how the calculation had changed to justify such an increase. She thought that the increase was due to her pension income (as the amounts were almost identical) and said the Council should not be allowed to take her pension into account.
  12. The Council responded on 14 August 2019. The officer said it had used a different charging policy since April 2019. It said its MIG was previously based on the DWP’s basic benefit level plus 25%, but it had now changed it to the MIG set by central government. It said it had also stopped offering a couple’s financial assessment. It said these two changes and the annual increase in benefits had resulted in the contribution Mr B had to pay.
  13. Mrs B made a further complaint saying she had not been given notice of the changes and had not been given time to arrange any appeal. The Council responded but its response was the same. It referred to changes in its financial assessment policy.
  14. The Council did not write to Mr and Mrs B in January 2020 to offer them the ‘better off’ calculation, after it changed its policy. As Mr and Mrs B were no longer receiving a service, they were not on the list of residents whom the Council contacted.

Ombudsman’s investigation

  1. As part of my enquiries to the Council, I asked the Council to explain when its charging policy changed and how this affected Mr B. The Council replied and said its charging policy had not changed.
  2. I queried this and the Council said:
    • ‘With regard to the Council contradicting itself, this was an error on the Council’s part and a misunderstanding of the case.’ The Council apologised for the error.
    • Its charging policy had not changed, but it had changed the way it calculated the amount for day to day living expenses, also known as the MIG to be in line with the Care Act 2014 and the circular.
    • Therefore, it had applied the MIG from the circular since April 2019 replacing its existing day to day living expenses buffers.
    • No formal consultation was needed as there had been no change of policy and the change was in line with the Care Act and the circular.
    • However, it realised it had never offered Mr and Mrs B a ‘better off’ calculation and would arrange for the financial assessment to be reviewed.
  3. I queried this further and the Council said:
    • It had independently reviewed the case and Mr and Mrs B’s financial assessment was incorrect and a further assessment was required.
    • The couple would be offered a ‘better off’ calculation. This would still probably result in a contribution by Mr B as Mrs B had started to receive her pension around the time of the July 2019 assessment which meant the couple’s joint income had increased.
  4. The Council sent a calculation which showed that Mr and Mrs B’s joint MIG as a couple was the same in 2016 and 2019 (£331).

Analysis

  1. The Council has already upheld the complaint that there was fault in Mr B’s financial assessment as it did not offer him the ‘better off’ calculation. I agree that was fault.
  2. The Council also did not write to Mr B after it changed the policy to offer him a ‘better off’ calculation which was further fault.
  3. There was also fault in the Council’s failure to properly explain why the changes occurred. Mr B had not paid a contribution for 9 years and was suddenly asked to pay £166. That was a big difference and the Council’s explanation, both during the assessment and afterwards, in the complaint correspondence, did not explain clearly why this happened. The Guidance says that clarity and transparency are essential in the Council’s financial assessments and the Council failed to provide this.
  4. There was also fault in the Council’s failure to properly consult and give notice of the changes. It is my view that this fault was wider than the concerns raised in Mr B’s financial assessment. The Council said that the two changes it made to its charging policy in April 2019 were not a change of policy as the changes were in line with the government circular and in line with its existing policy.
  5. I accept that the changes were not in breach of the government circular, but that was not the only issue. The question was whether the Council should have consulted the people affected before it made the changes.
  6. The Council was changing the way it calculated the contribution and was changing the discretion to the detriment of some of the residents, particularly by removing the ‘better off’ calculation.
  7. The CASS Guidance says a consultation is needed if the Council is deciding on how to apply the discretion. And a duty also arose under the principle of fairness. The proposed changes affected some of the Council’s most vulnerable residents and they should have been consulted.
  8. I am also of the view that the wording of the policy is slightly confusing. The most recent policy appears to suggest that the Council applies the MIG plus 25% which is not entirely correct. It only applies the MIG. The 25 % refers to the previous calculation when the Council was using the actual benefit plus 25% to calculate its buffer.

Injustice

  1. It is difficult to say with certainty what injustice, Mr and Mrs B suffered as a result of the fault.
  2. Only a fresh financial assessment can determine what the contribution will be. Mrs B says that she and Mr B stopped the care package because of the increased contribution. Mrs B has been providing the majority of the care herself since that date which has been a significant strain. She says their decision may have been different if there had not been fault in the Council’s financial assessment in July 2019 or if the Council had carried out a fresh assessment in January 2020.
  3. The Council has explained that, as Mrs B started to receive a pension around July 2019, it may be that, even if the Council had carried out the ‘better off’ calculation in July 2019, it would not have made a significant difference to Mr B’s contribution.
  4. Therefore, the injustice is the uncertainty caused by the incorrect assessment. The Council has agreed to repay the £500 Mrs B was charged when she tried to stop the package in August 2019 and an additional £500 to further reflect the injustice caused by the uncertainty. That is an appropriate remedy for the injustice I have found.
  5. I cannot speculate what the wider injustice was to other residents from the lack of consultation. I accept that, even if the consultation had taken place, the Council could still have made the changes it did. The Council is not bound by the outcome of the consultation and other councils have made changes to their policies similar to the Council’s, after consultation.
  6. I also note that the Council reversed its position on the ‘better off’ calculation in January 2020 and repaid those residents who had overpaid contribution between April 2019 and January 2020. Therefore, I am of the view that the Council has remedied the fault in that respect.
  7. The Council says the change in MIG was motivated by a desire to simplify the process of calculation rather than making changes to the contribution. The Council says the impact on the calculation was minimal (a few pounds a week) and it resulted in a decrease of the contribution rather an increase for a lot of the residents.

Agreed action

  1. The Council has agreed to take the following actions within one month of the final decision. It will:
    • Apologise to Mr and Mrs B in writing and pay them £1,000 to reflect the injustice caused by the fault.
    • Offer Mr and Mrs B a fresh financial assessment.
    • Remind relevant staff of the circumstances when consultation is needed.
    • Consider re-wording the charging policy so that it is clear what the MIG is.

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Final decision

  1. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman

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