The Ombudsman's final decision
Summary: Mr D complains the Council’s financial assessment of his mother, Mrs D regarding care charges was incorrect because it did not take account of her disability related expenses, high outgoings, or her wellbeing. We have not found fault by the Council. .
The complaint
Mr D complains on behalf of his mother, the late Mrs D, that the Council’s financial assessment of her income was wrong. He said the Council failed to take account of her particular circumstances and of her disability related expenditure. Mr D said that the family had to pay the charges because Mrs D could not afford it. This caused Mrs D distress and her health deteriorated.
As a result, Mr D as executor, complains the care charge was unfair and the Council should reimburse Mrs D’s estate the care charges of £12,800.
The Ombudsman’s role and powers
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).
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)
How I considered this complaint
I discussed the complaint with Mr D and considered the information he provided. Mr D and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
What I found
Legislation and guidance 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) 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.
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) 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 Mrs D lived with her son Mr D. She had been in hospital in 2021. She was discharged from hospital to her home. The NHS provided care until May 2022.
The Council carried out a care assessment and decided that Mrs D was eligible for care and support due to her needs. Mrs D required support to maintain her personal hygiene, manage her toilet needs and to be appropriately dressed amongst other things. The Council assessed that Mrs D required two care visits a day for 30 minutes in the morning and evening.
The Council noted that it advised Mr D about the financial assessment and charging for Mrs D’s care.
Mr D arranged private carers to support Mrs D. However, this was difficult due to the rural location of their home. The care fees were approximately £1000 per month or £219 per week. Mr D sought funding from the Council towards her care.
Mr D completed a financial assessment form on Mrs D’s behalf. He sent a letter with the financial assessment form explaining that: Mrs D owned her own home, but her house was in rural surroundings, larger than average and very old. This meant Mrs D’s outgoings particularly for heating were higher than average.
There was little or no equity in the house and so she could not downsize.
Mrs D had dental and optician costs Mrs D had outstanding solicitors fees to pay and needed to carry out repairs to the house.
Mr D said he provided domestic support, such as shopping, gardening, cooking, finances, cleaning, and driving Mrs D to appointments. Mrs D paid Mr D £300 per month for this.
Mr D provided a detailed breakdown of Mrs D’s income and outgoings. This showed that Mrs D had a surplus of just under £40 per month.
The Council carried out its financial assessment and notified Mrs D that it considered that her available income for care charges after expenses was £366 per week.
did not accept the other expenses Mr D had requested.
disregarded £30.55 of Mrs D’s attendance allowance disregarded the minimum income guarantee of £194.70 per week from her income when calculating her available income.
Allowed Mrs D’s higher than average fuel costs, which it assessed as £32.80 per week In July 2022 Mr D asked the Council to carry out a review of its financial assessment. He questioned the Council’s consideration of certain expenses, including the high cost of fuel for Mrs D’s home and said the Council should disregard her attendance allowance in full.
In October 2022 the Council reviewed its financial assessment. It did not change its assessment and confirmed that it considered Mrs D had £366 per week available income for care charges.
The Council responded to Mr D’s letter of July 2022 in November 2022. It apologised for its delay. It said it considered The Care Act 2014, as well as the Care and Support (Charging and Assessment of Resources) Regulations 2014 when carrying out financial assessments. It had already made some allowances for expenditure. It noted that Mr D said Mrs D’s home had higher than average running costs. However, it said that the statutory guidance did not allow for differences in running costs.
The Council provided information about schemes that could provide assistance with utility costs. It said that domestic support was something that should have been discussed at the care assessment when considering Mrs D’s support plan. It suggested that Mrs D could consider moving to another property such as an extra care housing scheme, although it acknowledged that this may not be something Mrs D would want. It suggested that Mrs D could consider voluntary schemes to take her to medical appointments. It did not agree that it should include any of the costs Mr D had identified as disability -related expenditure.
Sadly, Mrs D passed away in 2023.
Mr D pursued his complaint in August 2023. He asked the Council to review its decision. He said the Council had left Mrs D without any means to pay for her personal care. He believed he had shown that Mrs D did not have £366 per week as the Council had assessed. In his view: the Council denied Mrs D the funding she required to meet the needs set out in the care assessment.
It was difficult for the family to meet Mrs D’s needs based on two 30 minute visits a day. The Council had not considered the extra care she required due to illness in 2023.
The Council’s review of the financial assessment was difficult to understand and based on a standard letter. It was generalised and only considered DRE. The author gave no contact details.
Mr D said that solicitors had advised him the Council could set a higher minimum income guarantee. The Council had not used its discretion.
The guidance said Councils could consider above average heating costs as DRE.
Mr D had needed 24 hour support. The Council should have considered paying him or someone else to provide this support.
The Council should have made sure the Mrs D kept enough of her attendance allowance to meet her DRE. But the Council only disregarded one third of her benefit.
The Council responded in September 2023. It said that Mrs D had not received any chargeable services funded through the Council. The financial assessment was completed based on the information Mr D supplied and was subject to any care being agreed and authorised.
The Council noted Mr D’s view that it should have included additional expenses and Mrs D would then have been able to afford the charges. The Council said: Its financial assessment was in line with its policy and in accordance with regulations and guidance. It had accepted some expenses, while it deemed others were daily living expenses provided for by the MIG of £194.75 per week.
It had considered Mrs D’s wellbeing. Its care and support plan considered her needs. The Council said it provided advice, guidance and signposting to alternative options. These options could have reduced Mrs D’s living expenses and made her care more affordable.
It recognised Mrs D’s personal choices but this did not mean the Council would fund the difference due to Mrs D choosing more expensive living options.
It was aware it had discretion to set a higher MIG. It had considered Mrs D’s individual circumstances and using its discretion when it reviewed the financial assessment in 2022.
It had allowed an additional fuel cost of £32.80 per week.
Its consideration of Mrs D’s attendance allowance was in line with the statutory guidance which said that local authorities may take attendance allowance into account. However, the Council’s own policy allowed a partial disregard of £30.55 per week.
The Council did not agree it had denied Mrs D funding to meet her needs. It said her actual care fees were less than her maximum weekly charge. Therefore, she could fund her own care from her income rather than requiring a direct payment from the Council. Because of this, the Council had cancelled the direct payment process for Mrs D to fund her own support. The Council’s financial assessment found that several of Mrs D’s expenses were personal choice rather than relating to her disabilities and so they were not considered DRE.
The Council apologised that its review response in November 2022 was difficult to understand. It accepted there was not enough detail about the specific DRE that had been considered or disregarded. The lack of contact details could make it difficult to clarify points of confusion. The author accepted this feedback for improved communication going forward.
Analysis There is no evidence of fault in the way the Council considered Mrs D’s financial assessment, DRE and its review. We are not an appeals body. We consider if there is any fault in the way the Council made its decision. I have not found fault in the Council’s decision.
The Council completed its financial assessment in line with the statutory guidance and its own policy. Its policy was to disregard £30.55 of the attendance allowance, which it did.
It also allowed £32.80 higher than average fuel costs. It reviewed its decision but did not change it. It did not consider it should increase the MIG, or that it should disregard the other expenses Mr D requested. I consider the Council took account of relevant factors when making its decision and it considered using its discretion.
The Council has apologised that its letter in November 2022 did not contain a detailed enough response. It also accepted this as feedback to improve future communication. This is a suitable remedy.
Final decision
I have not found fault causing injustice that the Council has not remedied. I have completed my investigation and closed the complaint.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman