Summary: Mr X complains the Council was at fault in the way it calculated and advised him of his assessed contribution towards his Direct Payment care package and took recovery action against him for non-payment. We have found no evidence of fault in the way the Council considered these matters. So, we have completed our investigation.

The complaint

1. The complainant whom I shall refer to here as Mr X complains the Council failed to properly calculate and advise him of his assessed contribution towards his Direct Payment care package. Mr X also complains about the way the Council has taken recovery action against him for non-payment. Mr X says he has been caused distress by the Council’s actions and wants the debt written off.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. If we are satisfied with an organisation’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

4. I considered the complaint and documents provided by Mr X and discussed the complaint with him. I asked the Council to comment on the complaint and provide information.
5. 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

Law and Guidance

6. The Care Act 2014 is the legislation that sets out local authorities’ powers and duties in respect of social care. The Care Act 2014 is accompanied by a guidance document entitled Care and Support Statutory Guidance. This provides guidance for councils on how to meet their statutory duties under the Care Act.
7. Councils must carry out an assessment for any adult who appears to have a need for care and support. Decisions made by councils about whether someone’s needs are eligible for care and support must be made based on an assessment.
8. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The scheme must comply with the principles in law and guidance. The Council can take a person’s capital and savings into account subject to certain conditions.

The Council’s Corporate Debt Recovery Strategy

9. The strategy outlines the Council’s approach to recovering debt. It goes through four stages before beginning legal action. The early stages include dialogue with service users who have not been paying their invoices and encouraging them to set up arranged repayment plans to clear the arrears. The Council will then move onto more formal stages and look to start legal action.
10. The Council’s strategy aims to take account of the vulnerability of its customers.

Events leading to the complaint

11. What follows is a brief chronology of key events. It does not contain all the information I reviewed during my investigation.
12. Mr X began receiving a Direct Payment care package from the Council following a care needs assessment. The Council carried out a financial assessment and assessed that Mr X did not need to contribute towards the costs. This was due to his financial circumstances and the Council’s charging policy then which allowed service users to keep a large proportion of their disability benefits.
13. The Council aims to carry out a financial assessment annual review each year. This is to ensure service users are contributing the correct amount in line with any income change they may receive such as benefits.
14. The Council carried out a financial assessment annual review on Mr X in December 2019 and assessed he now needed to pay a weekly contribution of £39.52 towards his care costs. The Council wrote to Mr X to explain his need to contribute. The Council explained how the contribution had been calculated and it would send an invoice every four weeks starting from December 2019. This would explain how and where to pay. The Council started invoicing Mr X every four weeks from December 2019 onwards for his contribution. The letter told Mr X to tell the Council of any changes in his financial or personal circumstances as it may affect his contribution.
15. In February 2020 Mr X queried with the Direct Payment team how his contribution had been calculated. The Financial Assessment team contacted Mr X to explain the increase in charges for his carer led to his need to contribute. Council records note the call ended as Mr X was non-cooperative.
16. The Council carried out a financial assessment annual review on Mr X in June 2020. It noted an increase in Mr X’s benefits meaning his weekly contribution was £55.22 from April 2020. The Council wrote to Mr X explaining the contribution and how it had been calculated. Mr X contacted an Income Recovery Officer about the contribution, invoices, and debt. Mr X disputed the charges and debt and did not consider he should be paying anything because of his financial circumstances. The officer explained why Mr X owed the outstanding payments and the assessed contribution.
17. The Council carried out a financial assessment annual review on Mr X in July 2021. It assessed Mr X’s weekly charge as £83.15 from July 2021 because of a further increase in his benefits. The Council wrote to Mr X to explain. Officers noted Mr X was refusing to pay his contribution even though the Council had explained why he was assessed as needing to pay towards his care. Mr X owed over £4000.
18. The financial assessment team telephoned Mr X to explain again how it calculated his contribution, but Mr X was not cooperative. The Council considered taking legal action against Mr X to recover the debt as he was refusing to pay.
19. In 2022 the Council’s Income Recovery Team looked to take legal action but noted Mr X’s mental health conditions. So contacted Mr X’s social worker to discuss the situation with Mr X and try to agree a repayment plan to avoid legal action. The Income Recovery Team advised Mr X needed to complete a financial assessment so it could work out a repayment plan.
20. The social worker discussed the matter with Mr X and advised him to complete a financial assessment form sent to him in May 2022. Mr X was distressed about the debt and said he could not pay due to being on benefits. But would complete and return the financial assessment form. Council records note Mr X did not return the form.
21. The Council sent Mr X a letter of claim in August 2022 as he owed over £9000. The Council said it would take legal action for non-payment. It explained it had been unable to agree a suitable arrangement with Mr X to pay back the outstanding charge. This was because it considered Mr X was wilfully refusing to pay the invoices, was aggressive towards staff attempting resolution, refusing to engage with the debt management team and had ongoing charges.
22. In October 2022 an Income Recovery Officer contacted Mr X’s social worker to see if Mr X had now completed a financial assessment form. Although Mr X’s arrears were now £10,000 the Council was willing to make a repayment arrangement with Mr X to prevent it escalating to court action. But said Mr X needed to complete the financial assessment form to assess fairly what he could afford to repay each month.
23. Mr X complained to the Council about receiving invoices each month and said he was unaware he had to contribute towards the costs of his care. Mr X said he had not completed a financial assessment form and his circumstances meant he could not pay the debt. Mr X said the Council should write off the debt. This was because of the time taken to recover the debt combined with the Council failing to carrying out a financial assessment before asking him to pay for his care in 2019.
24. The Council confirmed it carried out a financial assessment in 2011. It had advised Mr X of his financial contribution in 2019, 2020 and 2021. The Council said it was willing to consider his finances from 2019 if he sent documents so it could carry out an assessment. The Council was willing to backdate the assessment in the light of any financial information. It would reassess and work out his contribution and the debt management team could agree a repayment plan to clear any arrears.
25. Mr X said he could not provide any financial information dating back to 2019, he was vulnerable and the demand for invoices affected his mental well-being. The Council asked Mr X to provide three months of bank statements and other supporting documents including benefit awards.
26. The Council carried out an annual review financial assessment on Mr X in November 2022. This increased Mr X’s weekly charge to £85.86. But the DWP confirmed Mr X was receiving a lower amount of benefit which would reduce his contribution costs for 2020 to 2021. And reduce his outstanding arrears once the Council processed the amendments.
27. The Council said it sent Mr X letters about his assessed contribution from 2019 onwards with invoices and reminders. Mr X had not sent in any evidence at the time to dispute the debt. The Council confirmed it had now carried out Mr X’s financial assessment on the basis he was receiving certain benefits. But the rates he received for the benefits meant he did not qualify for full financial support and must contribute. So, Mr X remained liable for the debt he owed. The Council offered to send an officer to visit Mr X to help him complete a financial assessment form and explain the process to him.

My assessment

28. The law allows the Council to charge for care services and it has financially assessed Mr X’s financial circumstances to see if he could afford to pay towards his costs. In 2011 Mr X was not required to make a contribution but following a financial review in 2019 he was assessed as being able to contribute to his increased charges.
29. The evidence provided shows the Council explained to Mr X by letter the outcome of the assessment, his need to contribute and how it was calculated. Documents show Mr X contacted the Council in 2020 to query the charges and his need to contribute was explained. It was also explained to Mr X again in 2021. So, I am satisfied the Council sent clear correspondence and spoke to Mr X about his need to contribute. And Mr X was aware of his need to do so as he was receiving the Direct Payment to pay for his care package. It is unfortunate Mr X chose not to cooperate with the Council over the charges or send in any evidence if he disputed them.
30. I am satisfied Council documents show it followed its debt recovery strategy by contacting Mr X informally at first about his outstanding charges. It considered his vulnerability from his mental health and involved Mr X’s social worker to help before starting to take more formal action. There is no evidence of fault by the Council so we cannot question its decision to start recovery action against Mr X.
31. The Council reassessed Mr X’s financial circumstances in 2022 and been able to reduce the outstanding charges for 2020 and 2021 because of the level of benefits Mr X received. But still calculates Mr X owes arrears of over £10,000. The Council has offered to help Mr X complete a financial assessment form and help explain the assessment process to him again. This is reasonable action for the Council to take and acknowledges Mr X’s mental health issues. Mr X may find it helpful to consider the Council’s offer, look to provide the financial information required and to discuss a repayment plan for the outstanding arrears.

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Final decision

32. I am completing my investigation. There is no evidence of fault by the Council in the way it calculated and advise Mr X of his assessed contribution towards his Direct Payment care package. And in the way the Council has taken recovery action against Mr X for non-payment of his contribution.

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Investigator's decision on behalf of the Ombudsman