Summary: Mrs X complains about the Council’s decision to charge for her late husband’s (Mr X) residential care fees for a period when she was unaware of his liability for charges. She is also unhappy the Council refused to disregard certain items as disability related expenditure (DRE). The Council has already accepted it was at fault and sought to remedy the distress caused by its delay in completing and sharing the financial assessment and invoice with Mrs X. It has now agreed to apologise and provide an improved remedy to Mrs X. There appears no fault in how the Council considered the items Mrs X requested as DRE.

The complaint

1. Mrs X complains about the Council’s decision to charge for her late husband’s residential care fees for a period when she was unaware of his liability for charges. Mrs X wants the Council to waive the charges payable from 10 October to 6 November 2022. Mrs X also wants the Council to apologise and appropriately remedy the distress and shock caused to her by its invoice for backdated charges. Mrs X is also unhappy the Council refused to disregard certain expenses her late husband had, which she feels were essential.

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The Ombudsman’s role and powers

2. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

3. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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

6. I have spoken to Mrs X and considered the information she has provided in support of her concerns.
7. I have considered the information the Council has provided in response to my enquiries.
8. Mrs 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

Relevant guidance

9. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care and Support statutory guidance (the Guidance). (Care Act 2014, section 14 and 17)
10. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.
11. When making decisions on charging councils should be clear and transparent so people know what they will be charged. Where a council has decided to charge it should explain in the financial assessment how the assessment has been carried out, what the charge will be and how often it will be made. The council should ensure this is provided in a manner that the person can easily understand, in line with its duties on providing information and advice. (The Guidance paragraphs 8.2 and 8.16)

Disability Related Expenditure

12. Disability Related Expenditure (DRE) is a discretionary allowance in a financial assessment for people who receive disability benefits. DRE offsets disability costs against their income. It means people can keep more of their income as councils do not take DRE into account in the financial assessment. Paragraphs 39 to 41 of Annex C of the Guidance says where disability-related benefits are taken into account, the council should make an assessment and allow the person to keep enough benefit to pay for necessary disability-related expenditure to meet any needs which are not being met by the council. The Guidance allows a council to refuse DRE for transport where a person has a mobility benefit which is available for and can cover the person’s travel expenses. It goes on to say -

“In other cases, it may be reasonable for a council not to allow for items where a reasonable alternative is available at lesser cost. For example, a council might adopt a policy not to allow for the private purchase cost of continence pads, where these are available from the NHS”

What happened

13. This timeline of key events does not cover everything that happened.
14. Mrs X cared for her late husband, Mr X at home. In April 2021, Mrs X asked the Council for a financial assessment for Mr X’s ongoing care. She provided information to the Council about their expenditure and income.
15. The Council completed a financial assessment in mid-June 2021 which concluded Mr X’s contribution to care costs would be nil as he did not receive a state pension. The Council completed a further financial assessment in late August and late November 2021, when Mr X spent some time in residential respite and attended day care services. The outcome of the financial assessment remained nil charge.
16. Mr X was moved into a residential care home following a diagnosis of early onset dementia on 12 May 2022. On 18 May 2022, Mrs X asked the Council to complete a financial reassessment for Mr X as he was now receiving a state pension.
17. The Council completed the financial reassessment on 7 November 2022. It issued an invoice to Mrs X for Mr X’s contribution to his care costs backdated to his date of admission in May 2022, totalling £4,490.42. Mrs X wrote to request a review of the Council’s financial assessment the week after receiving this invoice.
18. The Council completed its review of the financial assessment on 1 December 2022, following a discussion with Mrs X. The Council set out the adjustments it had made to the weekly charge Mr X owed, taking into account further information Mrs X had provided. Mrs X had asked the Council to consider Mr X’s private dental plan and her life insurance policy premiums as DRE. The Council explained such items were not considered DRE as they did not constitute priority expenditure. The Council also apologised for the delay in completing the financial reassessment and issuing the invoice.
19. In January 2023, Mrs X made a complaint to the Council about the shock of receiving such a considerable backdated invoice for Mr X’s care costs. Mrs X explained how her costs had not significantly reduced since Mr X had moved into residential care. She asked the Council to reconsider the items it had refused to include as DRE in its previous financial reassessment.
20. The Council responded to Mrs X’s complaint on 6 February 2023. It concluded Mrs X could not have been reasonably expected to know the financial reassessment would have resulted in Mr X being charged for his care when previous assessments had led to nil payment outcomes. The Council also explained that it had reassessed Mr X’s charges based on further information Mrs X had provided.
21. The Council decided to reduce the amount of Mr X’s weekly contribution to his care costs. It also decided to waive the charges he owed from 12 May to 9 October 2022. The Council explained the charges for 10 October to 6 November 2022 were still payable.
22. Mr X sadly passed away in March 2023.

Analysis

23. Prior to Mrs X bringing her complaint to us, the Council had accepted fault due to its delay in completing the financial reassessment for Mr X. The Council had also taken steps to remedy any injustice caused by its fault by agreeing to waive some of the care charges for the period in question.
24. In response to my enquiries, the Council has explained it did not waive fees for the period from 10 October to 6 November 2022 because it requests payments for such charges in arrears. It therefore believes Mr X should still be liable for costs for the ‘current’ period which was from 10 October to 6 November 2022.
25. While I understand the Council’s rationale, I do not consider it reasonable in these circumstances. The Council accepts Mrs X could not have been expected to know Mr X would be liable for care charges until she received the backdated invoice on 7 November 2022. It would therefore also be reasonable to conclude Mrs X would be unaware of the Council’s practice to charge in arrears. Because of this, I agree with Mrs X’s view that the Council should also waive the charges for the period from 10 October to 6 November 2022 – see my recommendation at the end of this statement. I consider this action appropriately remedies the shock and distress Mrs X experienced by receiving a large, backdated invoice.
26. There was no evidence of fault in the way the Council considered Mrs X’s requests for DREs. We are not an appeals body. We consider if there is any fault in the way the Council made its decision. I cannot find fault in a decision made by the Council just because Mrs X disagreed with it.
27. The Council completed a financial assessment for Mr X in line with the Guidance. It considered the benefits he received and his outgoings when it decided the charges he needed to pay for his care. It considered the items Mrs X claimed as disability related expenditure (DRE) in line with the guidance and its own policy. It provided Mrs X with a reason why it did not allow each item. As a result, I cannot uphold this element of Mrs X’s complaint.

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Agreed action

28. Within one month of my final decision, the Council agrees to:

• issue a written apology to Mrs X for the delay in completing the financial reassessment and distress caused by issuing a large, backdated invoice; and;
• issue written confirmation to Mrs X that the charges owed from 10 October to 6 November 2022 have been waived or issue a reimbursement of any charges Mrs X has paid to the Council for this period.

29. The Council should provide us with evidence it has complied with the above actions.

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Final decision

30. I have completed my investigation and uphold Mrs X’s complaint. The Council has agreed to make an improved remedy to appropriately redress the injustice caused by its fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman