Summary: There was no fault in the way the Council made changes to its charging policy for adult social care.

The complaint

1. Ms A complains about the way Norfolk County Council (the Council) made changes to its charging policy for adult social care. She says it:
1. Sent correspondence to her son Mr B about the charge when he could not read, understand or respond to it
2. Failed to consult about the proposed changes to the policy
3. Delayed in responding to her correspondence about the issue
4. Did not properly break down or explain the charge
5. Provided a complaint response which did not address the issues she had raised
6. Did not give any option of how to pay the charge and deducted it from Mr B’s direct payment without consent.

Back to top

The Ombudsman’s role and powers

2. 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)
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)

Back to top

How I considered this complaint

4. I considered Ms A’s complaint to the Ombudsman and supporting documents. I considered documents and information publicly available on the Council’s website about the proposed changes to charging policy. The parties had an opportunity to comment on a draft of this statement.

Back to top

What I found

Relevant law and guidance

5. Care and Support Statutory Guidance (CSSG) is statutory guidance which councils should normally follow. CSSG says councils can charge people for care they provide and if there is a charge, this should follow national regulations on charging.
6. There is no legal requirement for a council to consult about charges. CSSG says where a council is satisfied its charging scheme is in line with the Care Act 2014, they do not need to take further steps to review arrangements. They should consider the need to consult with the public, but formal consultation is not required if their approach to charging has not changed with the introduction of the Care Act.
7. National guidance from the government sets a minimum income guarantee (MIG). This is the minimum amount of money people must be left with before a council can charge them for their care. Until July 2019, the Council’s charging policy set the MIG for all customers, whatever their age, in line with national guidance for older people. This policy was more generous for people under pension age. The Council wanted to make changes to its policy to move to the less generous (lower) national MIG for people under pension age.
8. CSSG says councils can decide whether to make a direct payment net or gross of any charge. They should consider the benefits of net payments to reduce administrative costs (paragraph 12.26)

What happened

9. Mr B has severe learning disabilities and lives at home with Ms A. Ms A told us he cannot read or write and has little speech. Ms A manages Mr B’s welfare benefits as his appointee. Mr B has been receiving a direct payment from the Council since 2016. This is funding Ms A uses to arrange and pay for Mr B’s care. Mr B did not have to pay a charge for his care in 2016 because his weekly income was less than the MIG rate set by the Council at the time.
10. In November 2018, the Council wrote to people it identified as likely to be affected by the proposed changes to its charging policy. The letter explained the proposals and enclosed a copy of a form for people to complete and return if they wanted to comment. It explained the proposals would be discussed at the Council’s meeting in February 2019 and that the Council would tell people in good time if there were changes to the amount they had to pay.
11. A consultation document accompanied the letter. It gave the background to the proposals and some examples of cases which might be affected if the changes were implemented.
12. The Council approved the proposed changes to the charging policy in February.
13. Ms A told us she did not receive the consultation papers described above. She said the first thing she heard was a letter in May 2019, addressed to Mr B. Ms A told us she opened the letter because Mr B would not have been able to read or understand it. The letter was in easy to read format and said:
• The Council had written to customers in March explaining the changes to charging
• Mr B’s charge would be £31 from July 2019.
• The direct payment would go down by £31 and Mr B would need to increase the payment into his direct payment account by £31.
14. The letter went on to explain Mr B could claim an allowance (called Disability Related Expenditure, DRE) to reduce his charge. It gave examples of DRE and said people could phone the finance team for more help or if they had questions. There was also an application form for people to complete if they wanted the Council to consider specific DRE.
15. Ms A emailed the finance team at the start of June asking it to explain how the new charge had been calculated. She told us she did not receive a response.
16. At the start of July, Ms A wrote to a councillor about the new charging policy. She said:
• She would have to stop Mr B’s care if the new charge was implemented because Mr B and this would affect him adversely and push him into poverty
• She had asked for a full financial assessment with a breakdown of the calculations and had not received this.
• The Council had not tried to identify if Mr B had capacity to deal with his finances or of there was an appointee or other representative who managed his finances. Mr B could not read or write.
• They had not been consulted about the changes.
17. At the start of August, Ms A emailed the Council to say she objected to it deducting the new charge from Mr B’s direct payment. She asked for it to be refunded. Ms A also complained in writing to the Council about the issues she raises with us.
18. The councillor replied to Ms A’s letter (see paragraph 16) in August, apologising for the delay. He explained:
• Officers had used information about Mr B it already had on file and from the Department for Work and Pensions to calculate Mr B’s charge. It was not a new financial assessment, but was a review and was in line with CSSG as the Council already knew about Mr B’s finances.
• Ms A could provide the finance team with any updates and the Council would carry out a full financial assessment if she asked for one.
• He was sorry she did not get any information about the consultation. The Council had written to people it thought would be affected and also to relevant groups and there was local media publicity
• She had signed a form in 2016, as Mr B’s appointee, to say she understood Mr B might have to pay for his care and the form was a declaration to confirm consent and understanding.
19. The Council responded to Ms A’s complaint at the start of September saying:
• The councillor’s letter had dealt with most issues she raised in her complaint
• The finance team was happy to do a full financial assessment including looking at any disability related expenses.
20. Unhappy with the Council’s response, Ms A complained to us.

Was there fault and if so, did this cause injustice requiring a remedy?

Complaint a: The Council sent correspondence to Mr B about the charge when he could not understand it

21. The Council had been dealing with Ms A as Mr B’s representative for charging, and for managing the direct payment. It had a written declaration and authority from her on file from 2016. It was therefore fault to write to Mr B about a matter which he could not understand when the prior arrangement had been to deal with Ms A. This did not cause significant injustice because Ms A opened the letter and read it.

Complaint b: The Council failed to consult her about the proposed changes to the policy

22. There was no requirement for the Council to contact every person likely to be affected in a non-statutory consultation, such as this one. I cannot make findings about whether the Council wrote to Ms A or not or whether the letter got lost in the post. Even if the Council did not write, this would not be fault. I am satisfied from the information on the Council’s website that the consultation was appropriate in scale and people had a chance to air their views. So there was no fault.

Complaint c: The Council delayed in responding to her correspondence about the issue

23. There was a slight delay in the councillor’s response, but this was not serious enough to be fault and the apology remedied any injustice to Ms A.

Complaint d: The Council did not properly break down or explain the charge

24. The Council did not provide a full calculation of the charge, but in the response to Ms A’s complaint, it offered a full financial assessment. This would have included a breakdown of how the charge is calculated, using any information Ms A provided. There was no fault.

Complaint e: The Council provided a complaint response which did not address the issues she had raised

25. The Council’s complaint response was brief, but it also included a copy of the councillor’s letter which addressed the key points. I appreciate Ms A does not like or agree with the decision to change the Council’ policy on charging, but this is a decision for the Council and not for the Ombudsman.

Complaint f: The Council did not give any option of how to pay the charge and deducted it from Mr B’s direct payment without consent

26. The Council is allowed to deduct Mr B’s charge from his direct payment and CSSG encourages council to pay direct payments net of any assessed charge to reduce administrative costs. There is no fault.

Back to top

Final decision

27. There was no fault in the way the Council made changes to its charging policy for adult social care. As there was no fault, there are no grounds to criticise the policy changes the Council made.
28. I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman