Summary: Miss X complains about the Council’s financial assessment for her adult son. She says the Council only disregarded housing costs of just over £15 a week when Mr P’s contribution to the rent is around £53 a week. We do not find fault with the Council’s charging policy or financial assessment.

The complaint

1. Miss X complains about the Council’s financial assessment for her adult son, Mr P. She says the Council only disregarded housing costs of just over £15 a week. Miss X says Mr P’s contribution to the rent is around £53 a week. Miss X says because of the Council’s decision, she must make up the shortfall in rent on behalf of Mr P. Miss X says this has caused her an injustice as she should not be responsible for paying Mr P’s share of the rent.

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The Ombudsman’s role and powers

2. 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)
3. 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 spoke with Miss X and considered the information she provided.
6. I considered the information provided by the Council.
7. I sent a draft decision to Miss X and the Council and considered their comments.

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What I found

Legislation and guidance

8. The Care Act 2014, the Care and Support Statutory Guidance 2014, and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s powers to charge for care and support it provides.
9. Councils must carry out a financial assessment to make a decision about the charges. This will assess the person’s capital and income.
10. The Care and Support (Charging and Assessment of Resources) Regulations 2014 sets out the sums to be disregarded in the calculation of income. It notes where an adult has needs for care and support other than the provision of accommodation in a care home, any housing related costs which the adult is liable to meet in respect of their main or only home, should be disregarded. Housing related costs means any mortgage repayments, payments by way of rent or ground rent, council tax or some service charges.

The Council’s charging policy

11. The Council will charge for care and support delivered in other care settings, including an individual’s own home.
12. The Council will undertake a financial assessment to determine the amount an individual can contribute towards their care and support costs. The Council will undertake a financial assessment based, as a minimum, on income, capital, housing costs and disability related expenditure (DRE).
13. Direct housing costs will only be considered where the individual is liable for such costs, i.e. holds the tenancy agreement or is party to the mortgage.
14. For individuals living with family members, the income support rate for a non-dependent will be allowed as part of a financial assessment. No further rental allowance will be disregarded as part of the financial assessment.
15. The financial assessment will refer to the Care and Support Statutory Guidance for all disregards in respect of income and capital when making a determination of the individual’s financial resources.

What happened

16. Miss X lives with her partner and adult son, Mr P. Mr P is disabled and has care needs. Miss X moved into a two-bedroom property to care for Mr P. Miss X said when she looked for properties to rent, she had split the rent costs between the three adults. This meant Mr P’s rental contribution was around £53 a week. Miss X if Mr P was not dependent on her, she would be renting a cheaper one-bedroom property.
17. Before the Care Act 2014, where a person who received care lived with their family, the Council made an allowance in the financial assessment to consider any rent paid to the family. The amount was determined by what families said they charged for rent.
18. After the Care Act 2014, the Council reviewed and updated its charging policy in April 2015. The records showed the Council considered the legislation and regulations. The Council noted its initial view that the regulation suggested that unless liability, for example mortgage or rental agreement, was in the adult’s name, then no allowance for rent should be given.
19. Following further consideration, the Council decided it could exercise discretion regarding whether to take these costs into account. The Council implemented a flat rate allowance equal to the income support rate for a non-dependent, around £15 a week. This meant Mr P’s care contributions would increase.
20. Miss X appealed Mr P’s care and support charges in January 2018. The Council did not uphold Miss X’s appeal as it found it had appropriately applied the Council’s charging policy. Miss X appealed again in February 2018, which the Council considered. The Council agreed to reinstate Mr P’s previous care contributions, around £5 a week, for six months to allow the social worker time to look at Mr P’s future care needs. The Council was also due to review its charging policy around this time.
21. In August 2018, the Council told Miss X the charging policy review had been delayed. The Council agreed to continue to charge Mr P’s care contributions at £5 a week until the end of December 2018.
22. In April 2019, the Council told Miss X the charging policy review had been delayed again. The Council continued to charge Mr P £5 a week for his care contribution.
23. In October 2019, the Council completed the charging policy review. Following consideration, the Council decided to leave the rent allowance at the agreed rate and to make no further changes to the policy.
24. In January 2020, the Council wrote to Miss X to tell her it would not be changing its policy on the allowance for rent for adults who lived with their families. Miss X was unhappy with this decision and made a complaint in February 2020.
25. Between February 2020 and August 2020, the Council continued to charge Mr P £5 a week while it considered Miss X’s complaint. In August 2020, the Council considered whether to use its discretion to disapply the policy for Mr P. The Council confirmed it had considered Miss X’s and Mr P’s circumstances but decided it should apply the Council’s charging policy.
26. In October 2020, the Council completed a financial assessment for Mr P. The Council assessed Mr P’s contribution to his care to be just over £22 a week.

Analysis

27. The evidence shows the Council has considered the Care and Support (Charging and Assessment of Resources) Regulations 2014. There is evidence the Council original interpretation of the regulations was that no disregard for rent should be made unless the adult is liable. In other words, unless the adult is on a tenancy agreement or mortgage agreement, the regulations allow the Council to not take these costs into account during a financial assessment.
28. However, the Council decided it could exercise discretion regarding whether it could consider these costs. Therefore, the Council decided to instead implement a flat rate disregard for adults who lived with their families and for those are not liable for the rent/mortgage. The Council was entitled to reach this decision after consideration of the law and guidance.
29. Therefore, I cannot find fault with the Council for implementing this policy because it is in line with the law and regulations.
30. The evidence shows the Council has properly applied its charging policy when it completed Mr P’s financial assessment. Therefore, I cannot find fault with the financial assessment or Mr P’s assessed contribution.
31. The evidence also shows the Council has properly considered whether to use its discretion to not apply its charging policy in Mr P’s case. The Council has decided not to use its discretion and has applied the policy. This is a decision it was entitled to make.

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Final decision

32. We find no fault with the Council’s charging policy or financial assessment. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman