Summary: Mr X complained the Council unreasonably increased his daughter, Ms Y’s personal contribution towards her care costs.
He also complained the Council did not respond appropriately to his complaint. He said this caused him and Ms Y distress and financial loss. There was no fault in the Council’s actions.

The complaint

1. Mr X complained the Council increased his daughter, Ms Y’s personal contribution towards her care costs without giving him notice or explaining why it had done so. When he contacted the Council to complain, he found the Council employee he spoke to lacked empathy.
2. Mr X also complained the Council backdated charges on Ms Y’s account and did not use an independent Council employee to respond to his complaint. He said this matter impacted negatively on his and his daughter’s mental health and caused Ms Y financial loss.

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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, sections 26(1), 26A(1), and 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 spoke to Mr X and discussed his view of the complaint.
6. I considered the Council’s response to my enquiries including Mr X’s complaint, the correspondence shared between the Council and Mr X and Ms Y’s 2018 and 2019 financial assessments.
7. I wrote to Mr X and the Council with my draft decision and gave them an opportunity to comment before making a final decision.

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What I found

The Care Act 2014

8. The Care Act 2014 sets out a council’s duties towards adults who require care and support. Section 14 of the Act gives councils the power to charge for the care services they provide.
9. Councils should assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the council will provide a care and support plan which outlines which services are required to meet the needs and a personal budget that sets out the costs of the services.
10. A person can choose to receive direct payments and arrange the care and support themselves. The amount of direct payment is derived from the personal budget set out in the care and support plan.
11. Councils must assess a person’s finances to decide what contribution he or she should make towards their personal budget for care. The personal budget should also specify the cost to the council of meeting the person’s needs.
12. The Council carries out a financial assessment on an annual basis in line with increases in state benefits.

Disability Living Allowance and Personal Independence Payment

13. Disability Living Allowance (DLA) was a monthly benefit for disabled people.
14. DLA was made up of two components: care and mobility. To receive DLA an applicant needed to be eligible for at least one of the components.
15. The care component of DLA comprised two elements: day time and night time.
    If the recipient did not receive night time services, then the night time element was disregarded in the financial assessment.
16. DLA was discontinued by the government in 2013 and is gradually being replaced by Personal Independence Payment (PIP). Recipients of DLA will continue receiving DLA payments until invited to apply for PIP by the Department of Work and Pensions (DWP).
17. Similarly to DLA, PIP is designed to help disabled people who incur costs because of their disability. The amount eligible claimants receive depends on how their condition affects them in their daily lives. Unlike DLA, PIP does not differentiate between day and night time services.

Council complaints policy

18. The Council deals with adult social care complaints in line with the Local Authority Social Services and National Health Service Complaints Regulations 2009.
19. Within three working days of receiving a formal complaint, the Council must acknowledge the complaint and offer the complainant the opportunity to discuss how their complaint will be handled.
20. The Council aims to respond to all formal complaints within 20 working days of receiving the complaint.
21. If the complainant remains unhappy with the Council’s response and has new information to provide, the Council will decide whether the complaint warrants further investigation and let the complainant know the outcome within 20 working days.

What happened

22. Mr X’s daughter, Ms Y, is disabled and receives assistance from the Council.
    Mr X oversees her care.
23. In August 2018, the Council sent Mr X a letter containing Ms Y’s financial assessment for the year. The letter informed Mr X that the Council would review Ms Y’s assessment if her financial circumstances changed and asked Mr X to tell the Council if there were any changes, including awards of any new benefits or changes to existing benefits. The letter also said the Council reserved the right to backdate the financial assessment to reflect any changes to Ms Y’s income.
24. Several months later, the DWP sent Mr X a letter stating Ms Y’s entitlement to DLA was ending and inviting her to apply for PIP. With Mr X’s assistance, Ms Y successfully applied for PIP and this took effect from November 2018 onwards.
25. In April 2019, the Council sent Mr X a copy of Ms Y’s financial assessment for the year. Her financial contribution had significantly increased.
26. Mr X complained to the Council in late May 2019 and asked why Ms Y’s personal contribution was higher than the previous year. The Council responded in mid-June 2019 at Stage 1 of its process advising that Ms Y’s transfer from DLA to PIP had caused her personal contribution to increase because of the difference in how the care components were assessed.
27. The Council said Ms Y’s financial assessments told Mr X to let the Council know if there had been a change in her benefits or personal circumstances, but he had not done this. The Council concluded the letter saying that it would backdate Ms Y’s financial assessment to reflect the fact she had been awarded PIP from November 2018 onwards.
28. Mr X was unhappy with the Council’s response. He called the Council and complained in writing in late June 2019. He said he found the information regarding PIP on the DLA and local government websites misleading and did not confirm he needed to tell the Council about Ms Y’s transfer to PIP. Mr X said the Council should have known Ms Y applied for PIP and questioned why the Council considered PIP a new benefit when it was a replacement for DLA. He was also unhappy a Council employee was not empathetic to Ms Y’s situation when he contacted the Council to discuss the situation.
29. Mr X asked the Council not to backdate Ms Y’s contribution and to review how it communicated the requirement to update the Council on financial changes. He also asked the Council to apologise for its lack of empathy and acknowledge receipt of his letter within three working days as per its policy.
30. The Council acknowledged Mr X’s complaint the next day and advised it would investigate his complaint at Stage 2 of its process and respond within 20 working days.
31. The Council responded in July 2019 on the 20th working day and explained that the information Mr X had cited was from the DWP website and not the Council’s website. The Council attached letters it had sent Mr X advising him to tell the Council if Ms Y’s personal circumstances or benefits changed. The Council did not uphold Mr X’s complaint and confirmed there was an outstanding debt on Ms Y’s account due to the backdated financial assessment. The Council offered Mr X the opportunity to clear the balance with a monthly payment plan.
32. Mr X was not satisfied with the Council’s response and disagreed with the Council’s decision not to waive the arrears on Ms Y’s account. He was also unhappy the Council’s response did not come from an external person. He declined the Council’s offer of a payment plan and referred the matter to his local MP.
33. Mr X’s MP contacted the Council’s chief executive about the matter in September 2019. The Council wrote to Mr X’s MP in late October 2019 and reiterated the information set out in its previous letter to Mr X. Mr X brought his complaint to the Ombudsman shortly afterwards.
34. During the investigation, the Council confirmed the Stage 2 investigation was carried out by an external person but sent in the name of a Council employee who had previously corresponded with Mr X.

Findings

35. Mr X is unhappy the Council increased Ms Y’s personal contribution without alerting him or explaining why. The Council sent Mr X a copy of Ms Y’s financial assessment and instructed him to update the Council regarding any changes to her personal circumstances or benefits. I cannot fault the Council because Mr X did not do this. I also do not criticise the Council for failing to forewarn Mr X about the impact transferring to PIP could have on Ms Y’s personal contribution. It is not reasonable to suggest the Council should have known when the DWP would invite Ms Y to apply for PIP. In line with the law, the Council conducted Ms Y’s annual financial assessment in 2019 and clearly set out her benefits, disregarded income, and care costs. The Council also explained several times why Ms Y’s personal contribution had increased when Mr X queried this. There was no fault in the Council’s actions.
36. Once the Council became aware Ms Y’s benefits had changed, it backdated her financial assessment to reflect the date she was awarded PIP. This created arrears on her account. Mr X disagrees the Council should have done this.
    The law allows the Council to charge for the care a disabled adult receives from the Council. The Council made Mr X aware of this in Ms Y’s financial assessment. The Council was not at fault.
37. Part of Mr X’s complaint concerns the conduct of the Council employee he spoke to and the way the Council handled his complaint. He felt the Council employee he discussed the situation with was not empathetic and he was also unhappy the Council did not assign an independent person to investigate his complaint. I do not dispute Mr X’s recollection of the conversation, but I have not seen evidence that would allow me to make meaningful comment on Mr X’s perception of the Council employee’s attitude. The Council has confirmed that an independent person carried out the Stage 2 investigation. This is in line with the Council’s process. The Council was not at fault in how it responded to Mr X’s complaint.

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Final decision

38. There was no fault by the Council. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman