Summary: Miss X complained about the Council’s decision to charge her for care and support, and for backdating the charges, despite earlier telling her she would not have to pay. We found the Council at fault for delays in the re-assessment process, for failing to properly explain its decision, and for failing to acknowledge Miss X’s evidence and vulnerability.

The complaint

1. Miss X complained about the Council’s decision to charge her for care and support, and for backdating the charges, despite earlier telling her she would not have to pay.
2. Miss X said the Council was responsible for malpractice and delays in the financial assessment process. She said it then ignored her evidence and failed to consider her personal circumstances and vulnerability.
3. Miss X could not afford the care charges, so was forced to cancel her care package.
4. The Council has since agreed to waive the outstanding charges. It has reassessed Miss X, and she no longer has to pay for the cost of her care and support. She has therefore been able to re-start her care package. However, Miss X missed out on care and support she needed for several months, which caused her distress.

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The Ombudsman’s role and powers

5. 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 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)
6. 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

7. As part of the investigation, I considered the complaint and the information Miss X provided.
8. I made written enquiries of the Council and considered its response along with relevant law and guidance.
9. Miss 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

Charging for social care services: the power to charge

10. 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 Act statutory guidance. (Care Act 2014, section 14 and 17)
11. 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.
12. People receiving care and support other than in a care home need to keep a certain level of income to cover their living costs. Councils’ financial assessments can take a person’s income and capital into consideration, but not the value of their home. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by national government and reviewed each year. A council can allow people to keep more than the MIG. (Care Act 2014)

Disability Related Expenditure

13. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. The Care and Support Statutory Guidance sets out a list of examples of such expenditure. It says any reasonable additional costs directly related to a person's disability should be included. What counts as DRE should not be limited to what is necessary for care and support. For example, above average heating costs should be considered.

What happened

14. I have summarised below some key events leading to Miss X’s complaint. This is not intended to be a detailed account of what took place.
15. Miss X has complex care needs and suffers from psoriasis, psoriatic arthritis, blurred vision, agoraphobia, depression, and post-traumatic stress disorder (PTSD). She employs a personal assistant (PA) to meet her care needs. This is funded by a direct payment from the Council.
16. The Council wrote to Miss X about care charges in December 2022. It said asked for information about the children in her household for its mid-year review. It also said Miss X needed to let it know about changes in her income.
17. Miss X sent information to the Council in January 2023. She confirmed she was no longer receiving child benefits.
18. The Council wrote to Miss X on 10 April 2023. It said she would not have to pay anything towards the cost of her direct payments.
19. The Council wrote to Miss X again on 7 June 2023. It said it completed a re-assessment of her finances and, starting from 10 April 2023, she must now pay £129.01 a week towards the cost of her direct payments. The Council also said Miss X was liable to pay £114.76 a week for the period between 30 January 2023 and 10 April 2023.
20. Miss X complained to the Council on 13 June 2023. She said:
• The Council’s letter dated 7 June contradicted its letter from April, where it said she did not have to pay anything.
• This was an administrative error by the Council, it did not make her aware of the charges beforehand, and she would not pay.
• She was forced to pay off her mortgage because her ex-partner was claiming a share of the house. She used all her money to do this, going without essentials such as heating and electricity for several months, and the Council should take this into consideration.
• She was deeply distressed by the situation and desperately needed the help of her PA. Her care should be affordable, but it is not.
• The Council did not send her a disability related expenses (DRE) form for her last assessment, but she would complete this as soon as the Council sends one.
21. Miss X completed a DRE form on 21 June 2023, detailing the expenses linked to her condition. This included treatment for her psoriasis, specialist glasses, therapeutic treatment for her depression and PTSD, and specialist food and vitamins. Miss X also said her condition meant she was at home all the time, so she spends more on utilities. However, she said she could not afford to heat her home, so she used thermal clothes and blankets.
22. The Council responded to Miss X’s complaint on 11 July 2023. It said:
• It completes an annual review each April using increases outlined by the Government. Those increases were applied to Miss X’s previous annual review from April 2022 and were confirmed to her in the letter dated 10 April 2023.
• It wrote to Miss X in December 2022, asking for information about the children in her household. She supplied this information in January 2023. Regrettably, there was a significant delay by the Council in reviewing the information. It did not do so until June 2023. This meant the Council’s letter dated 10 April 2023 was incorrect. The Council apologised for this.
• When it reviewed Miss X’s assessment in June 2023, it became aware her personal independence payment (PIP) benefit had increased from the low rate to the enhanced rate in 2020, and her child benefit ended in 2021. However, Miss X had not made the Council aware of these changes at the time.
• It normally backdates these changes to the date the change happened. However, on this occasion it decided not to do so. Instead, it backdated the changes to January 2023, which was the date Miss X provided the information. The Council confirmed its decision to charge Miss X from this date remains.
• It acknowledged the difficulty Miss X experienced and why she paid off her mortgage. But it said it cannot include mortgage payments in future assessments as Miss X no longer has this ongoing cost.
• It confirmed it reviewed Miss X’s DRE claim, and allowed some of her expenses. This resulted in a decrease in the amount she will have to pay. From 30 January, the Council confirmed Miss X will have to pay £87.72 each week. And from 10 April 2023, she will have to pay £101.97 each week.
23. Miss X wrote to the Council on 22 July 2023 asking to take her complaint further, as she was not satisfied with the reply. She repeated that the mistakes and delay were the fault of the Council, and she should not have to pay for them. She said:
• If the Council had informed her straight away that she would have to pay such a high amount she would have cancelled her PA as she cannot afford it. She said she had been left with a debt she cannot afford due to the Council’s delay.
• She received the enhanced rate of PIP since 2015, so she was confused by the Council saying it changed in 2020. She said there has not been any change for her to report.
• She did not think to tell the Council about the change in child benefit at the time. She was suffering a mental breakdown.
• She had to let her PA go, leaving her with no support, and this has been profoundly detrimental to her mental health.
• She questioned why the Council did not allow expenses for specialist food or vitamins.
24. The Council sent its final complaint response on 10 August 2023. It apologised its letter dated 10 April 2023 gave the wrong information about Miss X contribution, and for the confusion and distress caused. However, it pointed to a section of its letter which states any recent changes of circumstances will be looked into, suggesting the contributions may change once the Council completes an assessment.
25. The Council also apologised for the delay completing Miss X’s re-assessment. It said it is still catching up with backlogs from the COVID-19 pandemic. It acknowledged the delay caused Miss X inconvenience and distress.
26. The Council then picked up on Miss X’s acceptance that she did not update the Council about her child benefits stopping. It did not acknowledge or comment on the reason she gave. Instead, it said it was not unreasonable for the Council to expect people to tell it about changes in a timely manner.
27. The Council said, as Miss X failed to inform it of the changes in a timely manner, it was entitled to backdate the charges to 2020. However, in acknowledgement of its own delays, it decided to only backdate the charges to January 2023.
28. The Council confirmed it reviewed Miss X’s DRE claim for specialist food and vitamins and will be allowing it. It said she would receive a new financial assessment outcome letter shortly.
29. On 14 August 2023, after including DRE for specialist food and vitamins, the Council reduced Miss X’s contribution to the costs of her direct payment to £35.35 a week from 30 January 2023 to 10 April 2023. It also reduced her contribution from 10 April 2023 onwards to £49.60 a week.
30. This resulted in the outstanding debt Miss X owed the Council also reducing, from £2,202.81 to £998.30.
31. Miss X brought her complaint to the Ombudsman on 24 August 2023.
32. A new social worker spoke to Miss X on 8 September 2023. They offered to review her care plan, look at her charges, and try to help Miss X restore her PA.
33. The Council wrote to Miss X on 15 November 2023, confirming it added more items of DRE into her financial assessment. This took her assessed charge back down to nil. The Council said this would also remove the outstanding debt.

My investigation

34. Miss X confirmed the Council wrote off the debt in November 2023, after her new social worker told her about more DRE she was entitled to.
35. Miss X said the Council accused her of not telling it about changes to her PIP. However, Miss X said there were no changes.
36. Miss X said the Council also accused her of not telling it her child benefits stopped. She gave the Council a letter from her support worker about her mental health problems at the time, and explained this was not deliberate. However, she said the Council dismissed this and did not take it into account.
37. Miss X told me the Council’s decision made her feel distressed, devastated, and unwell. Learning about the debt caused her considerable shock and she did not feel supported by the Council.
38. The Council told me when it reviewed Miss X’s care charges in 2019, 2020, 2021, and 2022 it sent letters asking her about any changes in her circumstances. It was her responsibility to update the Council of any changes to ensure her financial assessments were correct, but she did not do so.
39. However, the Council said it understands this was not a deliberate act. It said it acknowledged this when it decided not to backdate the charges to the date the benefit stopped, but to January 2023, when Miss X made the Council aware of the change.
40. The Council said as part of a reassessment in June 2023, it completed checks using the Department for Work and Pension (DWP) search system. This showed Miss X received the enhanced rate of PIP daily living allowance since 8 November 2020.
41. The Council said Miss X sent evidence she was awarded the enhanced PIP rate in April 2015, and it had therefore not changed. However, the Council said it had been assessing Miss X based on the lower rate of PIP and Miss X had not told it this figure was wrong. There therefore was a change to the figure used in the financial assessments. The Council apologised it did not address this in its response to Miss X.
42. The Council offered to pay Miss X £250 in recognition of the impact the reassessment had on her mental health.

Analysis

43. After Miss X returned financial assessment information to the Council in January 2023, it took the Council five months to review it. That was too long and was a significant delay. The Council acknowledged it was at fault and apologised for this in its complaint response.
44. The result of the Council’s delay was Miss X received an assessment in April 2023 that was not up to date and was therefore wrong. This gave Miss X the expectation she had nothing to pay towards her care charges.
45. When the Council then sent an updated assessment in July 2023, with both backdated and ongoing care charges, Miss X suffered considerable worry and distress.
46. However, the July 2023 assessment itself was correct at the time, as Miss X’s circumstances had changed since her last assessment. She was no longer receiving child benefits and she was no longer making monthly mortgage payments. While I fully appreciate the reason why Miss X had to repay her mortgage, and the hardship this caused her, the Council cannot continue to include outgoing payments in assessments if those payments are no longer being made. Miss X may consider this unfair, but the Council was not at fault.
47. The Council had also changed Miss X’s PIP benefit from the low rate to the enhanced rate. This again was an accurate reflection of Miss X’s circumstances. I found Miss X’s PIP was at the enhanced rate with an effective date of 2015. As part of Miss X’s financial assessment in June 2023, the Council checked the DWP database. This showed the DWP made the decision to move Miss X onto the enhanced PIP rate in 2020, but backdated it to 2015. Unfortunately, the Council did not explain this to Miss X or clarify the situation. Instead, it simply said Miss X had not told it about the change. However, from Miss X’s view there had not been a change. While the Council is correct Miss X has a responsibility to tell it about changes in her circumstances, I consider the Council should have been aware of the change if it had carried out the proper checks with DWP for Miss X’s earlier assessments.
48. The Council told me it accepts Miss X’s failure to update it about her child benefits payment was not a deliberate act. Miss X provided the Council with evidence of this, in the form of a letter from her mental health care coordinator, as part of her complaint. Unfortunately, the Council did not acknowledge this letter in its complaint response or recognise the difficulty she faced. Instead, it said it would be reasonable for her to have told the Council. This caused Miss X avoidable frustration and distress, and gave the impression the Council disregarded her evidence.
49. While the Council told me it only backdated Miss X’s charges to January 2023, considering her vulnerability, the Council’s complaint response said it backdated the charges in recognition of its own delays. I have not seen any evidence the Council considered Miss X’s circumstances or vulnerability at the relevant time.
50. When Miss X approached the Council to contest the charges, making it aware they were not affordable, the Council sent DRE forms.
51. If a council takes disability benefit into account, as the Council did here with Miss X’s PIP, it must also assess DRE. The Care Act statutory guidance says councils must leave people with enough money to pay for necessary DRE to meet any needs not being met by the council.
52. In this case, the Council included DRE in Miss X’s earlier assessments, allowing a standard amount of £25 each time. This was not itemised, and Miss X’s actual DRE does not appear to have been explored or assessed. However, as Miss X’s care charges were nil at that time, she did not raise anything. I found Miss X was not aware she could claim for some of her every day expenses linked to her disability. However, I found that, after Miss X complained about her care charges being unaffordable, the Council did then engage with Miss X about her DRE.

Injustice

53. The Council reduced Miss X’s charges to nil after allowing more DRE. It backdated this to remove Miss X’s outstanding debt. The Council has therefore remedied some of Miss X’s injustice.
54. However, Miss X suffered significant distress over the months she was coming to terms with the Council’s decision. This was a vulnerable time as Miss X did not have her support worker.
55. The Council has proposed to pay Miss X £250 to recognise the impact of its faults, namely the avoidable distress she suffered.
56. It was always going to be distressing for the Council to tell Miss X she must contribute to the cost of her care charges, as Miss X did not feel she could afford to pay. However, I did not find fault with the re-assessment itself. Based on the information available at that time, the Council was entitled to charge Miss X.
57. Nevertheless, the Council was at fault for delays in the re-assessment process, for failing to properly explain its decision, and for failing to acknowledge Miss X’s evidence and vulnerability. This caused avoidable frustration and distress which the Council should remedy. I consider £250 to be a suitable remedy for the distress resulting from the identified fault, and it is in line with the Ombudsman’s guidance on remedies.

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Agreed action

58. Within four weeks of my final decision, the Council will:
• Apologise to Miss X for not properly explaining the situation on her personal independence payments, for its delays, and for failing to acknowledge evidence about her vulnerability.
• Pay Miss X £250 in recognition of the avoidable frustration and distress its faults caused.
59. The Council should provide us with evidence it has complied with the above actions.

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Final decision

60. Subject to further comments by Miss X and the Council, I intend to complete my investigation. I found the Council at fault for delays in the re-assessment process, for failing to properly explain its decision, and for failing to acknowledge Miss X’s evidence and vulnerability.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman