Summary: Miss X complained about the Council’s decision to increase the amount her mother, Mrs Y, has to pay towards the costs of her care and support. I find the Council at fault for how it calculated the amount which caused her distress and uncertainty. The Council has agreed to apologise and re-assess the weekly charge.

The complaint

1. Miss X complains about the Council’s decision to increase the contribution her mother, Mrs Y, has to pay for her care costs from £55 to £98 per week. Miss X said the Council failed to take into account costs related to Mrs Y’s disabilities and care needs and the increased charge made her anxious and depressed.

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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 how the organisation made its decision, 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 information Miss X provided and discussed the complaint with her.
5. I considered the Council’s comments and the documents it provided.
6. 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

Statutory Guidance

7. 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)
8. 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.
9. 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.
10. 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). The MIG amount is different depending on a person’s age and circumstances. It changes each financial year. For Mrs Y the MIG was set at the following amounts:

• Before 1 April 2024: £214.35
• From 1 April 2024: £228.70

The Council’s policy

11. The Council’s adult social care charging policy states the non-residential financial assessment will ensure that people have sufficient money to meet their housing costs, allowable disability related expenditure costs and retain the MIG amount known as “Protected Income”.
12. It states DRE will be considered if the following criteria are met, relevant to their expenditure:

• The extra cost is needed to meet a person's specific need arising out of illness or disability as identified in the person's care needs assessment.
• Items are not normally provided by the NHS or another agency.
• The NHS or another agency cannot supply the item free of charge or at a lower cost.
• Travel costs for social inclusion activities identified in the person's care needs assessment.

13. It states no allowance will be made for any item or service that is required or used by the general population and would be considered normal expenditure. The only exception shall be where an item or service is used specifically because of the person's illness or disability and would not otherwise be used. Or the item or service is not available at a lower cost. DRE will not be allowed for the following expenditure:

• Amounts paid in relation to care provided by a family member.
• Normal fuel costs.
• Carer's expenses, other than essential companion's costs.
• Travel costs if the journey is undertaken to meet a need or service in use by the general population (e.g., shopping trips, visits to friends / relatives).

14. It also details the appeal procedure if a person feels care costs have not been calculated in accordance with the policy. In summary, when a person appeals, an independent council officer should consider the first appeal in 5 working days. If a second stage appeal is lodged, a panel of two senior council officers should consider it within 21 days, and the person should be notified of the outcome within five working days.

What happened

15. In October 2023 the Council conducted a review of Mrs Y's care needs. It did a care and support needs assessment and support plan in November 2023. She needed carers to come and assist her every day. The weekly budget for the care was £286.42. The care commenced in early November and Mrs Y was initially told she would have to contribute £54.96 per week towards to the cost of her care.
16. In January 2024 the Council completed a financial assessment of Mrs Y. It took account of Mrs Y’s income, savings and DRE. It also took account of the MIG which was described as the Basic Allowance on the form and correctly listed as £214.35. It calculated Mrs Y had to contribute £98.47 per week.
17. On 15 January the Council wrote to Mrs Y. It said it had completed the financial assessment and she had to pay £98.47 per week. It explained her appeal rights.
18. On 3 February Miss X appealed the cost of Mrs Y's care. She listed home heating and incontinence products (pads and kitchen roll) as costs the Council had not taken account of. However, It appears the Council did not class this as an appeal in line with its appeal procedure. It treated it as a request for a review of the charges under a different part of its policy.
19. On 7 February the Council responded to Miss X. It said it had looked at the additional information Miss X provided. It decided the £98.47 charge would remain the same. The reasons for this were:

• The evidence submitted showed the amount of gas and electricity Mrs Y used was approximately £2700 per year. That amount was under £2993.70 which the Council said was normal for Mrs Y’s home and circumstances. Therefore, it made no allowance for the cost of home heating.
• The inadequate use of the NHS incontinence pads was not highlighted in the care assessment and Mrs Y should contact her GP to get incontinence pads free of charge on the NHS. Therefore, no allowance would be made for incontinence products.
• It did not consider the extra use of kitchen paper and toilet rolls were DRE.

20. On 15 February Miss X appealed to the Council a second time. She said:

• Mrs Y actually paid £3000 per year for energy.
• The NHS limited the number of incontinence pads it would provide and Mrs Y had to purchase more.
• Mrs Y needed more toilet and kitchen rolls due to her incontinence.
• Mrs Y’s care package did not include trips to the shops and doctors’ appointments, which costs her approximately £30 per week.

21. On 2 April the Council conducted a reassessment of the calculation of Mrs Y's care costs. This process was completed by independent Council officers on two separate appeal reassessment forms. The financial assessments used the same figures as the first assessment in January. Both forms listed the MIG as £214.35. On 1 April the MIG had increased to £228.70.
22. On 2 April the Council wrote to Miss X with the stage one outcome following her two appeal requests. The Council apologised for the delay in writing to Miss X. It told her the charge had been reassessed and would remain the same, £98.47 per week. It enclosed a reassessment calculation table. Miss X had 14 days to appeal the stage one outcome.
23. On 14 April Miss X appealed the stage one outcome. She gave the same reasons she gave in her second request to appeal on 15 February.
24. On 18 April 2024 the Council wrote to Miss X with the stage two outcome of her appeals. It told her the appeal panel had considered her appeal on 15 April 2024. The panel found no change to Mrs Y’s weekly charge.
25. On 16 May Miss X complained to the Council on behalf of Mrs Y. She complained Mrs Y's charge of £98.47 was too high and asked it to be reduced to £50 to £60 per week.
26. On 21 May the Council responded to Miss X's complaint. It said full consideration had already been given to the charge in the appeal procedure. As Miss X's complaint was about the final charge, the Council said it could not revisit that under the complaint procedure. It referred Miss X to the Ombudsman if she was still not satisfied.

Analysis

The Council’s calculation of the money Mrs Y should pay.

27. I have considered the additional costs that Miss X appealed to the Council about. I have considered whether they should have been assessed as DRE which would have possibly reduced the amount Mrs Y would have had to pay.
28. The Council’s policy excludes some expenses as DRE, as outlined in paragraphs 12 and 13 above. Its policy is in line with the Statutory Guidance.
29. I consider the Council’s decisions to not classify the costs for heating, toilet roll, kitchen paper and routine journeys are in line with its policy and the Statutory Guidance. Therefore, I do not find the Council at fault for not treating those costs as DRE.
30. With regard to the costs for incontinence pads. In its letter dated 7 February the Council told Miss X she should get the pads free of charge on the NHS. However, on 15 February Miss X told the Council the NHS limited the number of pads it provides and told Mrs Y she had to purchase some. I have not seen evidence the Council checked whether the NHS would provide what Mrs Y needed or responded to Miss X on this point.
31. The local NHS body has a continence service. Its website contains information about prescriptions for incontinence pads and advice for people that purchase their own pads. It does not specify whether there is a limit on the number of pads it provides free.
32. I find the Council at fault for not considering whether there is applicable DRE for incontinence pads in light of information from Miss X. This might have caused a higher charge than it should and caused injustice in the form of distress and uncertainty.
33. I have also considered whether the Council properly accounted for the MIG referred to in paragraph 10 above.
34. When it first calculated Mrs Y’s financial contribution in January 2024, the Council used the correct sum of £214.35. I find no fault in the way the Council considered the MIG up until the end of the financial year on 31 March 2024.
35. However, when the Council re-assessed Mrs Y’s financial contribution on 2 April it used the same sum, despite the MIG having increased to £228.70 at that point. The Council said it was appropriate to continue using the lower MIG rate when assessing retrospectively because Mrs Y’s benefits also increased with the new financial year. This could have resulted in her financial contribution increasing. The new cycle of financial reassessment will commence in 2025 for Mrs Y and will take into account the new MIG and benefit rates.
36. I do not find the Council at fault for using the lower MIG value when it re-assessed Mrs Y’s finances on 2 April.

The appeal process

37. The Council’s policy details the process it should follow when people appeal care costs.
38. In this case, Miss X first appealed on 3 February. The Council treated this as a review of Mrs Y’s charges and replied on 7 February. The Council’s policy says reviews are for when a person’s financial circumstances had changed, but this was not the case. I therefore consider the Council should have treated this as a stage one appeal. I find this was fault and caused delay.
39. Miss X appealed again on 15 February. the Council treated this as an appeal of Mrs Y’s care costs. However, the Council did not have an independent officer consider the appeal within five working days in line with its policy regarding appeals. Instead, an independent officer considered and notified Miss X of the stage one outcome of her appeal on 2 April 2024. This was more than six weeks later and not in line with its policy. I find this was fault that caused delay.
40. I find the Council at fault for not following its appeal process. The increased length of the process caused injustice to Miss X as the delay caused her uncertainty and frustration.

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Agreed actions

41. Within six weeks of the final decision the Council will:

• Assess Mrs Y’s maximum weekly charge, with regard to Miss X’s point that there is a limit on the amount of incontinence pads the NHS will provide free of charge. If the assessment results in a lower maximum charge than the Council charged, the Council should reimburse Mrs Y the difference from the relevant point in time.
• Apologise for any identified higher charge and for the injustice caused by not following its appeal process.

42. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I find there was fault causing injustice. The Council has agreed to the actions to remedy the injustice, I have therefore completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman