Summary: Mr F complained about how the Council dealt with his daughter’s financial assessment and the policy around this. We found fault with the Council’s actions which caused injustice to Mr F and have recommended remedies.

The complaint

1. The complainant, whom I shall refer to as Mr F, complains on behalf of his daughter Miss G that:

• the Council stated it made a mistake in the original financial assessment and Miss G’s personal contributions needed to increase;
• the Council treated Miss G as a new user, and stated the policy changed for new users meaning the financial assessment would include all Miss G’s Personal Independence Payments (PIP). Miss G should not be considered a new user because the break in care was due to following Government COVID guidelines; and
• the new Fairer Charging Policy has never been part of a consultation nor shared with service users and the Council’s website holds previous guidelines from 2017.

2. Mr F says this has impacted Miss G tremendously as she has limited understanding and not being able to see her friends is causing her to display severely challenging behaviours. Mr F also says that neither him or his wife have respite from caring for Miss G and they do not know how long they can continue this for.

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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. 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)
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. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
6. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide any fault has not caused injustice to the person who complained or any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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What I have and have not investigated

7. I have investigated Mr F’s complaint about the Council’s decision making relating to the second financial assessment and the policy related to this.
8. I have not investigated Mr F’s complaint about the financial assessment the Council completed in April 2022. This is a late complaint and it would have been reasonable for Mr F to have complained about this matter to the Ombudsman before September 2023. In addition to this Miss G was not receiving care at the time of this financial assessment and so any fault within this financial assessment has not caused significant injustice to Mr F or Miss G.

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How I considered this complaint

9. I have considered the information Mr F provided. I also considered the information the Council provided in response to my enquiries.
10. Mr F and the Council had an opportunity to comment on my draft decision. I have considered these comments before making a final decision.

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What I found

Legislation and guidance

Assessment

11. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.

The Council’s Financial Contributions Policy for Adult Social Care Services

12. The Council’s policy states that the value and treatment of income will be based on the definitions within the Care Act 2014 Care and Support Statutory Guidance Annex C. All individuals will be offered the opportunity to have a full financial assessment to calculate their contribution.

Charging for social care services: the power to charge

13. 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)

How to assess

14. 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.
15. 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. 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)

The Care Act 2014

16. Local authorities have flexibility within the framework; for example, they may choose to disregard, or not include additional sources of income, set maximum charges, or charge a person a percentage of their disposable income.
17. Local authorities should develop and maintain a policy on how they wish to apply this discretion locally. In designing this policy, local authorities should consider the objectives of care and support charging and how it can be clear and transparent so people know what they will be charged.

Benefits

18. Disability Living Allowance (DLA) is made up of two components (parts), the ‘care component’ and the ‘mobility component’. To get DLA a person must be eligible for at least one of the components. The care component is split into three rates lowest, middle and highest.
19. Personal Independence Payment (PIP) is made up of two parts, the ‘daily living part’ and the ‘mobility part’. The Care Act 2014 says that the mobility part of the PIP should not be included in financial assessments. The daily living part has two rates, lower and higher.

Direct payments

20. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly. (Care and Support Statutory Guidance 2014)

Local Government and Social Care Ombudsman Principles of good administrative practice

21. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction ‘Principles of Good Administrative Practice’. This includes being open and clear about policies and procedures and ensuring information, and any advice provided is clear, accurate and complete and stating the criteria for any decision making.

Summary of key events

22. Miss G is an adult who has been assessed as having eligible care and support needs. She lives with her parents.
23. Miss G was transferred from receiving Disability Living Allowance (DLA) to Personal Independence Payment (PIP) on 22 October 2018. Miss G receives both the daily living and the mobility part of PIP. The difference in the two benefits is that there is no night time element for PIP as was the case for DLA.
24. Before the COVID-19 outbreak Miss G received direct payments to provide services to meet her needs. These services stopped in March 2020 due to the COVID-19 lockdown starting.
25. In September 2020 Miss G’s annual review took place. The family felt it was too unsafe for Miss G to return to services due to COVID-19 and asked for the Council to review this in six months. During this time, the Council amended Miss G’s care plan due to the care package she had with Shared Lives ending. The Council discussed this with Mr F.
26. In December 2021 Miss G’s family contacted the Council to enquire about a new personal assistant to start supporting Miss G in spring or summer 2022. A social worker told the family that Miss G would need a reassessment first.
27. In April 2022 a Council system error resulted in a financial assessment uplift letter being sent. It showed a client contribution of £37.08. The Council said in response to my enquiries this letter should not have been issued to the family because Miss G did not have care services in place then. The Council also said the client contribution amount in this letter was incorrect.
28. A reassessment of Miss G’s care and support needs took place in June 2022. The Council drafted Miss G’s care plan for a personal assistant to support her.
29. Mr F contacted the Council in August to say he had found a potential personal assistant for Miss G.
30. A new financial assessment took place in August. The result of this was a client contribution of £67.63. Mr F was unhappy the client contribution was higher than the financial assessment that was completed in April.
31. Miss G’s family appealed the Council’s decision to increase Miss G’s care contributions. They were unhappy the Council had included Miss G’s full PIP daily living payment in the financial assessment. When Miss G was receiving DLA, the Council only included the day part of this benefit in the financial assessment. This was because due to Miss G’s needs, she could not receive nighttime care. This resulted in Miss G’s care contributions being lower with DLA. However, now Miss G was receiving PIP, there was no separate nighttime care element and so the Council had included the full daily living part of the benefit in the financial assessment.
32. The Council considered this appeal. The result of this was the Council decided to uphold Miss G’s assessed contribution of £67.63 because it considered there were no exceptional reasons to disapply its policy. The Council also highlighted that the family received carers’ allowance for the support they provided to Miss G.
33. The family confirmed they wanted to put the personal assistant on hold as they were disputing the contributions.
34. The family made a complaint to the Council in an undated letter. The family stated they had signed a support plan on 23 August agreeing to Miss G’s contribution of £37.08 per week and were unhappy these contributions had increased with the new financial assessment. The family also complained the policy on the Council website stated that if a service user is unable to access night care then the Council would exclude the DLA night care element.
35. The Council responded on 14 February 2023 and stated:

• Miss G’s financial assessment before 2018 did not include night care benefits;
• in 2018 the Care Act changed which meant that financial assessments would now include night care elements. However, the Council continued to exclude the night time element for any financial assessments that had remained in place, to not financially disadvantage services users;
• the April financial assessment contained historic financial information. Therefore, the client contribution of £37.08 was wrong;
• due to Miss G’s break in care provision a new financial assessment was completed in line with the new Care Act guidelines. This calculated the client contributions as £67.63;
• this part of the complaint was not upheld and the Council decided the contributions would remain at £67.62; and
• the Council also stated the complaint identified that improvements and checks were needed to ensure that financial assessments include only current valid disregards. The Council said it would implement this within 6 weeks.

36. The family did not agree with the complaint response and escalated this to stage two.
37. The Council responded upholding the previous decision. However the Council did accept the complaint highlighted that public information about fairer charging (policy and practice) should be clearer.
38. Mr F complained to the Ombudsman in September.

Analysis

The Council stated it made a mistake in the original financial assessment and Miss G’s personal contributions needed to increase

39. As I have explained, I have not investigated this point as it was a late complaint to the Ombudsman. Also, as Miss G was not receiving care at the time of this financial assessment there is insufficient personal injustice to justify continuing to investigate this part of the complaint.

The Council treated Miss G as a new user which meant all of the PIP daily living would be included in the financial assessment

40. Mr F complains that Miss G should not be treated as a new user as the family were following Government guidance about COVID-19 when Miss G’s care stopped.
41. The Ombudsman’s role is to review how councils have made their decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant information, or not properly explained a decision it has made. We call this fault, and, where we find it, we can consider any consequences of the fault and ask the relevant council to address these.
42. However, we do not make operational or policy decisions on councils’ behalf, provide a right of appeal against their decisions, or seek to replace their judgement with our own. If a council has made a decision without fault then we cannot criticise it, no matter how strongly a complainant feels it is wrong. We do not uphold complaints simply because someone feels a council should have done something different.
43. What that means in this particular case is that it is not for me to make my own judgement about whether Miss G should have been treated as a new user or how much her client contributions should be. However, I can consider whether the Council properly made its decisions about this.
44. It was not fault for the Council to complete a new care and support assessment with Miss G, due to the amount of time that she had been without care and support. This is in line with the Care Act 2014.
45. The Council decided that due to the significant break in care Miss G was a new user. The Council did not issue any specific policy around breaks in care during COVID-19 and says it assessed people on their individual circumstances. I am satisfied the Council has given clear and logical reasons for treating Miss G as a new service user. This is a decision the Council is entitled to make.
46. Mr F also complained about the increase in Miss G’s care contributions due to the Council including all of the PIP daily living part in the financial assessment.
47. The Council explained in its response to my enquiries that in 2018 PIP replaced DLA and the Care Act was amended to allow the whole of the PIP daily living part to be included in a financial assessment.
48. The law relating to this is clear. The Care and Support Statutory Guidance states a Council has flexibility with charging and a discretion to choose to disregard additional sources of income, set maximum charges, or charge a person a percentage of their disposable income.
49. The Council records show that in September this discretion was properly considered by a service manager who stated the decision would remain as there were no exceptional circumstances identified. This is a decision the Council is entitled to make.
50. I therefore find no fault in this element of Mr F’s complaint.

The Council did not consult about its policy change and the policy holds information from 2017

51. Mr F complained that the Council’s policy has not been to public consultation and contains previous guidelines from 2017.
52. The policy on the Council’s website is from 2017. This was due to be reviewed in 2019 and there is no evidence this has happened. In response to my enquiries, the Council stated it reviewed this policy yearly in line with the Department for Work and Pensions circulars. However as there were no fundamental changes to the Care Act 2014 the policy remained current.
53. However, there is no update in the policy around the changes to financial assessments after the introduction of PIP or what discretion the Council will exercise in these circumstances.
54. The Care Act is clear that a Council must develop and maintain a policy on how it wishes to apply its discretion. The Council has not done this, and this is fault.
55. In response to my enquiries the Council stated that a full review of the policy has been ongoing since 2023 and it is planning to go out to public consultation later in 2024.
56. Mr F also complained the Council’s policy held the previous charging guidelines about DLA. It is right that this information is still included in the policy as some people are still claiming DLA. However, Mr F was unable to find anything within the policy relating to the changes for new users that the Council is referring to.
57. The policy does state “the value and treatment of income will be based on the definitions within the Care Act 2014 Care and Support Statutory Guidance Annex C”.
58. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction ‘Principles of Good Administrative Practice’. This includes being open and clear about policies and procedures and ensuring information, and any advice provided is clear, accurate and complete and stating the criteria for any decision making.
59. The law is also very clear about this. The Care Act 2014 states that a Council should be clear and transparent so people know what they will be charged. This is not the case here as the policy does not include information around how the Council is exercising its discretion with charging in relation to PIP. This is fault and this has caused Mr F frustration about how the Council would include PIP payments in financial assessments.
60. The Council acknowledged in its stage two response that Mr F’s complaint highlighted that public information about the fairer charging policy and practice should be clearer and that it would be addressing this.

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Agreed action

61. Within one month of my final decision the Council should:

• apologise to Mr F for the faults and injustice identified in this statement;
• make a payment of £150 to Mr F in recognition of the frustration caused by the Council’s failings;

62. Within six months of my final decision the Council should:

• complete the review of the financial contributions policy;
• finalise the financial contributions policy changes.

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

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Final decision

64. I have completed my investigation with a finding of fault causing injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman