Summary: Mr X complained about how the Council had assessed his son’s, Mr Y’s care contributions and disability related expenditure. He said the Council had failed to backdate payments, sent him threatening invoices and had failed to respond to his complaints. We find the Council was at fault for delays in backdating Mr Y’s disability related expenditure and in its correspondence with Mr X about this matter. It also failed to respond to his complaints. That has put Mr X to avoidable time and trouble and caused him frustration and distress. The Council has agreed to apologise and make a symbolic payment to Mr X to remedy the injustice caused.

The complaint

1. Mr X complained on behalf of his adult son, Mr Y. He said the Council had:
1. Incorrectly increased Mr Y’s contribution to his care costs without good reason.
2. Delayed in completing Mr Y’s disability related expenditure (DRE) assessment and then failed to backdate the DRE to the application date.
3. Sent threatening payment reminders despite Mr X asking the Council to change the invoice date for Mr Y’s care; and
4. Failed to respond to his complaints.
2. Mr X said the Council’s actions have put him to avoidable time and trouble as he had to follow up his complaints on multiple occasions and the problems had not been resolved. He said Mr Y, had been left financially worse off as he had to pay for care he is not assessed as needing.

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The Ombudsman’s role and powers

3. 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)
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. I have used my discretion to investigate Mr X’s complaint from March 2018 as the matters he complains of have been ongoing and the Council has not sent a final response to his complaint.
6. 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

7. I discussed the complaint with Mr X and made enquiries of the Council.
8. I referred to the relevant legislation and statutory guidance.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The law on charging

10. The Council can charge an adult for care it arranges or provides, following an assessment of the persons care needs. The Council completes a financial assessment to determine the maximum weekly contributions it will ask the person to pay. The assessment considers the person’s income and expenditure. The Care and Support statutory guidance, says that after charging, a person must be left with the minimum income guarantee to pay for their daily living costs.
11. The Council must consider certain types of income when completing the financial assessment including benefits such Personal Independence Payment (PIP). However, it may disregard other income. The Council’s policy says if the adult receives disability living allowance (DLA) or PIP and only requires daytime support, it will disregard the night-time element of the benefit.

Disability related expenditure

12. Disability related expenditure (DRE) are additional living costs a person may have that arise from a disability or long-term health condition. The Council applies a standard disregard of £5 per week to all adults when completing their financial assessments. If an adult thinks their DRE costs are higher than that, they can request a full DRE assessment.

Adult social care complaints

13. The Council’s adult social care complaints process is based on the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 (the Regulations). These state the Council should contact the complainant within three days of making a complaint and that any investigations should take no more than six months. The Council aims to investigate these complaints within 30 working days.
14. The Council has a three stage corporate complaints procedure. It initially tries to resolve the issue informally. If that is unsuccessful, a senior manager investigates and responds within 15 working days. If a complainant remains unhappy they can ask for a complaint review. The Council aims to respond to there within 25 working days.

Background

15. Mr Y is deaf and severely autistic. Mr Y cannot live independently and lacks capacity to manage his finances. Mr Y previously lived with Ms B for 25 years. She met his care needs and acted as the appointee for all his benefits and care charges. When Mr Y lived with Ms B, the Council assessed his weekly care contributions as £33.
16. Mr Y moved into independent supported living (ISL) accommodation in 2016. He lives with two other men who also have support needs. There is a Deprivation of Liberty Order in place on Mr Y as he needs continuous supervision and monitoring and is not free to leave his accommodation without support. That restriction is needed to promote Mr Y’s safety and wellbeing.
17. Mr Y’s most recent care and support plan completed in 2020 says he needs one-to-one support throughout the day. It says that there is sleep-in support available for Mr Y to call on at night because the two other residents need around the clock support. Mr Y receives around 63 hours of care a week and has a personal budget of £919 per week.

Complaint a) The Council’s financial assessment of Mr Y and his contribution to care costs

18. The Council completed a financial assessment of Mr Y in March 2018. That said that he needed to contribute £114 a week to his care costs.
19. Mr X contacted the Council and said that Mr Y had previously only had to contribute £33 a week. He said the cost of Mr Y’s care package had decreased therefore he could not understand why Mr Y’s contributions had increased. He said Mr Y had additional DRE costs the Council had not considered.
20. The Council responded. It said the reason for the increase was because:
• it had previously not taken the night-time element of Mr Y’s DLA into consideration. As Mr Y received support at night this was no-longer disregarded.
• At Mr Y’s previous accommodation, the household paid a mortgage and the financial assessment had assumed Mr Y would contribute towards those costs. Therefore, the financial assessment had disregarded a higher amount of Mr Y’s income. It said Mr X now received full housing benefit and was exempt from council tax.
21. Mr X sent further emails in June and October 2018 to the Council disagreeing with the Council’s explanation for the increased costs. In December 2018, the Council met with Mr X and reiterated why Mr Y’s contributions had increased.
22. Mr X contacted the Council further in March 2019 about Mr Y’s charging. The Council responded saying it thought the matter was resolved.
23. Mr X told me the Council has not provided historical financial assessments therefore he does not believe its justification for the increased care costs.

My findings

24. Mr X’s care plan states he cannot live independently. Because of this, he has 24-hour support available which he shares with the two other men who live in the ISL property. The Council was not at fault for considering Mr Y’s full PIP allowance in its financial assessment.
25. I have not viewed Mr X’s historical financial assessments but considered the assessment completed by the Council from 2018 when Mr X first complained. There is no fault in how the Council completed that assessment. It used the correct income information for Mr Y and ensured he was left with the minimum income guarantee. The Council was not at fault.

Complaint b) The Council’s assessment of Mr Y’s eligibility for disability related expenditure and applying the reduction to his contributions.

26. Mr X sent the form applying for additional DRE to the Council in May 2018. In this he said Mr Y paid service charges of £15.20 weekly. He provided Mr X’s tenancy agreement.
27. The Council contacted Mr X in June 2018 asking for a breakdown of the service charges. Mr X responded saying it went towards gardening, window cleaning, heat and light. He said the information was in Mr Y’s tenancy agreement.
28. In September 2018 the Council emailed Mr X asking for further evidence of the expenditure for the claims. Mr X complained. He said he had already provided the Council with all the information it needed about Mr Y’s DRE.
29. The Council met with Mr X in December 2018 about his complaint. Following that meeting the Council contacted the service provider for further clarity about the service charges.
30. The Council considerred Mr Y’s DRE in January 2019. It agreed to increase Mr Y’s weekly DRE to £10.17; that meant it applied a further £5.17 disregard in his financial assessment. It told Mr Y about the change in his weekly DRE in March 2019.
31. Mr X complained in October 2019 that the Council had not backdated the DRE to the point he initially applied.
32. The Council wrote to Mr X in May 2020 about Mr Y’s DRE- that letter had an incorrect address and Mr X said he did not receive it. The Council supplied a copy of the letter to the Ombudsman as part of our investigation. It said the Council had applied a credit amount of £418.77 (81 weeks at £5.17) to Mr Y’s account on 30 October 2019. It said that left an outstanding balance of £19.15 on the invoice it issued on 18 December 2019.
33. The Council provided the Ombudsman a copy of that invoice. It had an outstanding balance of £437.92. Mr X provided the Ombudsman the Council’s invoice for Mr Y for October 2020. That invoice shows an outstanding balance of £19.15.

My findings

34. The Council asked Mr Y for additional information to support the DRE application in June 2018. It did not consider that until September 2018. That was a short delay but not so significant for the Ombudsman to consider it fault.
35. The Council asked Mr X for further information about Mr Y’s expenditure in September 2018. The Council’s notes indicate the finance panel were not clear what DRE Mr X had requested. That prompted Mr X’s complaint to the Council.
36. The Council was entitled to ask Mr X for additional information. However, it was not clear in its email to Mr X that it needed him to breakdown the £15.20 service charge to specify how much of that overall charge went on different services. That does not appear to have been explained until the Council met with Mr X in December 2019. The lack of clarity in the Council’s correspondence was fault and has caused Mr X frustration.
37. The Council said it sent Mr X a letter about the DRE in May 2020. That was seven months after Mr X complained about the backdated payments. That delay in responding to him, was fault. That letter was sent to an incorrect address which is most likely why Mr X did not receive it. That was fault. Further still, the information provided in that letter was inaccurate. Despite the Council stating it credited Mr Y’s account with the DRE in October 2019, that credit was not applied to the account until October 2020. That is fault.
38. The above faults have caused Mr X avoidable time, trouble and frustration as he continually raised the matter with the Council.

Complaint c) How the Council invoiced Mr X for Mr Y’s care

39. The Council’s computer system automatically generates invoices for Mr Y’s care at the beginning of the month which it sends to Mr X.
40. Mr X does not receive Mr Y’s benefits until the end of the month. That means he cannot pay the invoice immediately. The Council sends Mr X a reminder and final notice each month before he pays the invoice. Mr X says he finds these reminders threatening.
41. Mr X emailed the Council in June 2018 explaining the delay in payment. The Council manually entered an override on the system so Mr X would not get sent a reminder. It did that again the next month after Mr X contacted it further. Mr X asked the Council to change the invoice date so he did not have to contact it monthly. The Council responded, it said invoices were automatically generated. It told Mr X that as he paid the invoice within 21 days of the recovery letter then he did not need to contact the Council.
42. Mr X complained in September 2018 about the invoicing and the response from the Council Officer. The Council responded on 24 October 2018. It said that to change the invoicing dates needed manual intervention and it was not something it could do monthly. It said it had initially done it as a gesture of good will. The Council told Mr X he did not need to complain further as a Team Manager was in the process of resolving the matter.
43. Mr X wrote to the Council further. He said he was following the Council’s advice to contact it if he had difficulty paying an invoice. He said he was unable to pay Mr Y’s invoices until the month after issue. He asked the Council to put a notification on the computer so it had an ongoing record of the reasons for any delay in payment.
44. In response to enquiries the Council said it invoices all customers at the same time and that it is not able to change the dates for invoicing. It said Mr X could have arranged a payment plan with the Council if there were payment difficulties.

My findings

45. The Council has said it cannot permanently amend the date that Mr X is invoiced as it would need monthly intervention. The Council is entitled to choose not to do that. The Council was not at fault.
46. I appreciate Mr X finds the reminder letters threatening, however, the Council is entitled to send them. The Council has explained Mr X can ignore these letters if he pays the invoice within 21 days of receiving the recovery letter.

Complaint d) How the Council dealt with Mr X’s complaints

47. Mr X complained to the Council twice in September 2018 about the invoicing and the DRE assessment process. Mr X addressed these to different people in the Council. One Officer responded stating his complaint had been passed to the complaints team.
48. Mr X contacted the Council three times further in October 2018. The Council’s corporate complaints service responded to his complaint about invoicing. The Council’s adult social care service wrote to Mr X in November 2018, it said they were trying to resolve the concerns Mr X had raised. It said there was no need to progress through the statutory complaint’s procedure.
49. Following that, a Council Officer met with Mr X in December 2018 and discussed his complaints about charging, the DRE and invoicing. They sent him an email the following day about Mr Y’s client contributions and stating the invoicing complaint had been passed back to corporate complaints. Mr X responded stating his disagreed with what the Council had said about Mr Y’s contributions. He also sent a further email about the delay with the DRE assessment.
50. Mr X contacted the Council further about Mr Y’s charging in March 2019. The Council said it thought the matter was resolved.
51. Mr X brought his complaint to the Ombudsman in September 2019 because he still had not received a final response to his complaints from the Council. Mr X continued to contact the Council in October and November 2019.
52. In response to enquiries, the Council said it had completed an internal audit of Mr X’s complaint handling in December 2019. That identified the Council:
• did not finalise the record of complaint with Mr X after meeting him in December 2018;
• did not feel that Mr X’s concerns were really a complaint, therefore it had tried to resolve it outside of the complaint process;
• closed the complaint as a ‘historical’ complaint.
53. The Council said it was working on the following areas to prevent a recurrence of what had happened:
• Regular complaints case discussions with Service and Team Managers.
• Keeping in better contact with complainants.
• Implementing online complaints handling training.
• Putting complaint reminders in managers and investigators calendars to improve response rates.

My findings

54. After Mr X complained to the Council in September and October 2018, there was an initial delay in it responding to him and setting out how it planned to deal with his complaints. That delay was fault and caused Mr X avoidable frustration.
55. The Council tried to resolve Mr X’s complaints with him informally and met with him in December 2019 to do that. That was in line with its policy. The Council was not at fault.
56. Following that meeting, Mr X expressed ongoing dissatisfaction about the Council’s explanation on charging and invoicing. He also complained further about the DRE assessment. Mr X continued to follow up his complaint for the next twelve months. However, the Council has not provided Mr X a final response on his complaints. That was fault. That fault has put Mr X to avoidable time and trouble.
57. The Council’s internal audit has identified what went wrong in its handling of Mr X’s complaint. The Council has already taken action to address its complaint handling therefore I have not made service improvement recommendations.

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Agreed action

58. Within one month of the final decision the Council has agreed to apologise to Mr X for:
• failing to provide a final response to his complaints;
• its poor communication about Mr Y’s backdated DRE; and
• the delay in not applying the backdated DRE until October 2020.
59. The Council will also make a symbolic payment to Mr X of £300 to recognise the avoidable time and trouble he has been put to following up his complaints with the Council and the backdating of Mr Y’s DRE payments.

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Final decision

60. The Council was at fault for failing to respond to Mr X’s complaints and not dealing with his requests to have Mr Y’s disability related expenditure backdated. The Council has agreed to make a symbolic payment to Mr X to remedy injustice caused therefore I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman