Summary: Mr X complains about how the Council has assessed the financial contribution he should make towards the cost of his care and support. Mr X says the Council failed to carry out a financial assessment over two years, properly record payments, and incorrectly assessed both his contribution and his outstanding debt. We have found the Council at fault for not considering whether Mr X’s care and support plan, and allocated personal budget, were sufficient for his care needs. We have made recommendations to remedy the injustice this caused. We have not found the Council at fault for asking Mr X to provide relevant financial information, or for how it issued reminders about the debt.

The complaint

1. Mr X complains about how the Council has assessed the financial contribution he should make towards the cost of his care and support. Specifically, Mr X says the Council:
1. failed to carry out financial assessments when asked to do so, over several years;
2. failed to properly record payments he made towards the cost of his care and support;
3. used out of date financial information to assess his contribution;
4. failed to be transparent about how it had determined his contribution and calculated the amount of money owed; and
5. sent requests for payment at inappropriate times.
2. Mr X says the Council has incorrectly said he must pay a large bill towards the cost of his care and support, which he cannot afford. This has caused frustration and distress, affecting Mr X’s wellbeing.

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What I have and have not investigated

3. Part A of Mr X’s complaint concerns the Council’s failure to carry out a financial assessment from 2019 onwards. Part B also concerns payments Mr X made towards the cost of his care and support from 2017 onwards.
4. As set out in paragraph 7, the Ombudsman cannot consider late complaints unless there are good reasons to do so. However, in its response to Mr X’s complaint, the Council accepted it had acted with fault on these matters and it proposed ways of addressing the injustice caused.
5. I have therefore exercised discretion to consider the Council’s actions from 2019 onwards, as some of the Council’s proposed actions form the basis of Mr X’s ongoing complaint and claimed injustice. I have not considered matters prior to this, as I have not found any reason Mr X could not have complained to the Ombudsman sooner.

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The Ombudsman’s role and powers

6. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. 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)
8. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

9. I discussed the complaint with Mr X and considered information he provided.
10. I considered information the Council provided in response to my enquiries.
11. Both Mr X and the Council were able to comment on a draft version of this decision. I considered any comments received before making a final decision.

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Relevant legislation, guidance and policy

Care and support plans

12. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.

Personal budgets

13. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning. It should confirm the final amount of the personal budget through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.
14. There are three main ways a personal budget can be administered:
• as a managed account held by the council with support provided in line with the person’s wishes;
• as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes; or
• as a direct payment. (Care and Support Statutory Guidance 2014)

Direct payments

15. 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.

Charging for social care services

16. 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)
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.
18. 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

19. 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.

Reviews

20. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

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What I found

21. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every interaction between parties. Where necessary, I have expanded on some of these events in the analysis section of this decision statement.
22. Mr X lives at home and receives direct payments to help meet his care and support needs. The Council administered the direct payments by pre-paid card. From 2017, Mr X’s personal contribution towards the cost of his care was £55.37 per week. Mr X’s care was made up of support from two personal assistants (PAs), for 22 hours per week.
23. In May 2019, the Council completed a review of Mr X’s care needs. The review stated there had been no change in Mr X’s social care needs, but there had been changes in his health needs. The Council documented Mr X was having more epileptic seizures during the night and was having to pay a PA to stay with him some nights of the week. The Council recorded that Mr X was having difficulty paying his personal contribution each week, because he was paying his PA for more hours overnight.
24. The Council recorded that it needed to review Mr X’s direct payments, as there was less in the account than there should be. It also said Mr X needed a new financial assessment, because he was unable to make his contribution regularly, leading to a shortfall.
25. In July 2019, the Council carried out an audit of Mr X’s direct payments. The Council wrote to Mr X with the outcome, advising there was a surplus in his direct payment account amounting to £230.96. It said it would begin automatically clawing this surplus back.
26. In August 2019, the Council wrote to Mr X again. It told Mr X the audit had also shown Mr X was not paying enough into his direct payment account. It explained how much should be paid into the account and with what frequency. It told Mr X it would be monitoring the account and if Mr X did not make regular payments, it would issue an invoice for the outstanding amount. It may also potentially end the direct payment arrangement. It did not provide Mr X with a balance.
27. In May 2021, the Council carried out a review of Mr X’s care needs. The Council recorded some changes in Mr X’s needs. It stated:
1. Mr X had recently had an audit of his direct payments that had left him unhappy.
2. Mr X had asked for a financial assessment every time he had been allocated a new worker, but this had not happened.
3. Mr X was considering reducing his direct payment hours, to allow him to pay a contribution.
28. In August 2021, the Council wrote to Mr X to confirm it had completed an audit of his direct payment arrangements. The Council told Mr X that he had not been making any regular contributions towards the cost of his care. It said that between February 2017 and June 2021, Mr X should have paid £12,537.35, but had only paid £766.37. This left Mr X with a shortfall of over £11,000.
29. Mr X wrote to the Council, disputing the amount it said he owed. Mr X said:
1. his own records showed he had paid more than £5000 between 2017 and 2019.
2. his social workers had provided multiple bank statements to the Council’s audit team when requested.
3. his social workers had made repeat requests for new financial assessments over the previous few years, but the Council had not acted on any of these requests. Mr X said if the Council had assessed his finances, he may have made continuous contributions at a lower rate. He said it was possible he would not have needed to contribute towards the cost of his care at all.
4. he agreed that he had been assessed for a weekly contribution in 2017. He said nothing had happened since, despite his efforts to address this.
5. he wanted the Council to respond with a full explanation. He said he did not accept the Council’s calculations, which had caused him significant anxiety.
30. In October 2021, Mr X wrote to the Council again. He said he had not received a reply to his previous email, sent almost two months before. He said the Council had routinely ignored Mr X and his social workers.
31. Later that month, Mr X made a formal complaint to the Council. In his complaint, Mr X:
1. said his social workers had been asking the Council to carry out a financial assessment for over four years, but this had not happened.
2. said he had tried to address the situation again recently, but the Council had ignored his correspondence.
3. said he could not pay the amount specified on the Council’s recent invoice. He said he would not be paying the amount specified, because the Council had ignored repeat requests for a financial assessment.
4. asked the Council to respond in writing.
32. The Council responded to Mr X’s complaint in December 2021. In its response, the Council:
1. accepted Mr X had asked for a financial assessment in April 2019 and that one had not been carried out since then. The Council said it would carry out a new assessment and backdate any changes to April 2019. It said any charges prior to this date would remain unchanged.
2. said it had introduced a new contributions policy, meaning Mr X’s client contribution could increase when assessed. The Council said if this was the case, it would not backdate any increases, instead only applying the increased charge from the point of reassessment. If Mr X’s charge decreased in the new assessment, the Council would backdate the decrease to April 2019.
3. said it had reviewed its records and located all the payments Mr X said he had made apart from two. It had also located an additional payment, which it believed Mr X had meant to pay towards his contribution. It said the located payments would reduce the invoiced amount to £8,202.88.
4. said it had reviewed Mr X’s accounts since August 2021 and there had been no payments made. It said the outstanding amount from August 2021 was £719.81. The Council upheld this aspect of Mr X’s complaint and apologised for the unnecessary distress caused. It said it would issue a new invoice for the lower amount.
5. said the officer investigating Mr X’s concerns in August 2021 left the authority and the Council had not effectively handed the work over to somebody else to complete. The Council said it was unclear why reminders about the outstanding balance on Mr X’s account had not been followed up. It upheld Mr X’s complaint about poor communication and offered a payment of £100 in recognition of Mr X’s time and trouble.
33. Following this, the Council sent Mr X paperwork relating to the new financial assessment.
34. In January 2022, Mr X sent in information relating to disability-related expenditure (DRE). Mr X also wrote to the Council, saying he had considered the Council’s complaint response, but did not fully accept its findings. He said:
1. he had completed some of the information the Council asked for, but could not provide paperwork relating to 2019 through to 2021. He said his circumstances had changed since then and his debts had been consolidated in 2022. He also no longer had his private nighttime personal assistant.
2. he had provided details of DRE to the Council that day, which he understood would be DRE for the 2022 period.
3. he was aware of the debt of over £8000 the Council said he owed, but he did not believe he had to pay this, because the Council had made mistakes, leading to the arrears.
35. In February 2022, the Council replied to Mr X. It said:
1. Mr X would need to provide the documents needed for the Council to be able to carry out a financial assessment for the period between 2019 and 2021. The Council said most financial organisations kept records for six years, meaning Mr X should be able to obtain copies of documents where required.
2. It said Mr X would also need to provide details of DRE for the 2019-2021 period.
3. The Council had correctly registered the debt throughout the process and had advised Mr X about this accordingly. The Council accepted it had not carried out a financial assessment, but said it was now offering to do so. It said the arrears may change because of this, although it may remain the same. It said the invoices it had issued recently remained valid. If the financial assessment reduced the charges, it would amend the invoices accordingly.
4. The Council would carry out a light-touch financial assessment if Mr X did not provide the information requested by 11 March 2022. It said if this happened, the Council would write to Mr X and explain the outcome.
5. To ensure Mr X had sight of his current assessed contribution, the Council would be transferring Mr X to invoiced charges instead, paying the direct payment as a gross figure from February 2022. It said it would send these invoices to Mr X’s email address.
36. Mr X told the Council he had returned the paperwork for 2022 and had explained why he could not provide information for the 2019-2021 period. Mr X said it was not his responsibility to collate this information for the Council.
37. On the 8 March 2022, the Council wrote to Mr X again. It said it had completed a light-touch financial assessment and confirmed Mr X would need to pay £111.75 per week towards the cost of his care and support. The Council also asked Mr X for details about his DRE claim, seeking copies of Mr X’s heating and water costs for the previous year.
38. Mr X provided the Council with a list of DRE-related expenses and said he did not agree with the outcome of the financial assessment. At the end of March 2022, the Council wrote to Mr X again regarding his claim for DRE. It said the information Mr X provided was incomplete and asked again for copies of his heating and water bills for the previous 12 months.
39. The Council says it did not receive a response to this letter from Mr X. It says because of this, it did not follow up on an appeal, as it would normally have done. Mr X says he responded to the Council with the information in May 2022. I have not seen evidence of Mr X’s submission to the Council.

Events during this investigation

40. The Council says Mr X contacted it in January 2023 to ask why there had been a delay in his appeal being considered. The Council says it responded to Mr X, explaining it had sent a letter in March 2022 requesting relevant information, but had not received a reply. It provided a copy to Mr X and said it would consider any information Mr X provided.
41. Mr X sent a revised DRE appeal to the Council. Mr X said he had not previously submitted all relevant costs, so he was making a new appeal. He said he also received funding from a charity towards the cost of his electricity from August 2022.
42. The Council says it wrote to Mr X again at the end of January 2023, requesting further information to be able to carry out the assessment. The Council told me it did not receive a reply from Mr X.

Analysis

Complaint the Council failed to carry out financial assessments when requested

43. In its complaint response, the Council accepted Mr X had asked for a financial reassessment in April 2019. It accepted it had failed to complete an assessment since then. I agree with the Council’s finding of fault.
44. This fault caused Mr X an injustice. Mr X had repeatedly sought a financial assessment to check his contribution towards his care was correct and affordable, given that he was having difficulty making regular payments. The Council failing to carry out this assessment caused Mr X uncertainty and distress. I consider the Council’s offer to conduct a financial assessment and backdate this to 2019, if advantageous to Mr X, was reasonable. This would partially remedy the injustice caused, by seeking to return Mr X to the position he would otherwise have been in.
45. However, I believe the Council’s offer of £100 is not sufficient to fully remedy the remaining uncertainty and distress Mr X experienced, given the length of time in question and the Council’s failure to respond to repeat correspondence.

Complaint the Council failed to properly record payments made towards care and support

46. When Mr X disputed the amount the Council said he owed, the Council reviewed its records and located several payments it had not recorded correctly. It upheld this aspect of Mr X’s complaint and apologised for the distress caused by the original invoice issued.
47. I agree with the Council’s finding of fault. During this investigation, Mr X told me he believed the Council had since located all of the missing payments and this was no longer in dispute.
48. The Council locating the missing payments, updating its records and providing an apology represents a suitable remedy for the injustice caused.

Complaint the Council used incorrect financial information to assess his contribution

49. Mr X said he no longer has details of his finances between 2019 and 2021, as his debts were consolidated and his circumstances had changed. He said the Council was using incorrect information, based on assumptions, to calculate his personal contribution.
50. The Council said it would consider any evidence Mr X could provide about his finances during the period in question. It said this information should still be held by Mr X’s bank. It checked the benefits Mr X had received during this period and, in the absence of any evidence from Mr X, conducted a light-touch financial assessment.
51. I have not found the Council at fault for its approach in this case. The Council is reasonably entitled to seek evidence that is likely to be available, to help it carry out an accurate financial assessment. The Council has suggested it would remain open to considering any information Mr X provides about this and adjusting its calculations accordingly.

Complaint the Council failed to be transparent about how it calculated the amount of money owed

52. The overall cost of Mr X’s care is the personal budget, allocated to meet his assessed needs. Mr X’s contribution makes up part of the personal budget, with the remainder being paid for by the Council.
53. Mr X says it is not clear how the Council has calculated his debt. The Council says Mr X’s debt is based on the fact Mr X should have been paying £55.37 per week between February 2017 and November 2021, totalling £13,810.86. The Council said it had received payments totalling £4,882.17 in this period, leaving an outstanding balance of £8,928.69.
54. Stated in this way, there is little doubt as to how the Council has calculated the arrears it says Mr X owes. However, it is not clear how the Council decided the overall personal budget allocated to Mr X, since April 2019, was meeting his care and support needs.
55. The Council told me Mr X was allocated a personal budget of £228.14 in February 2017, covering 22 hours of PA care per week. The Council said Mr X continued to receive this until 2023, when it applied an uplift and increased the amount to £314.82. The number of hours of care per week remained at 22.
56. Between February 2017 and April 2019, there seems to have been no doubt as to whether this personal budget was sufficient to meet Mr X’s assessed care needs. However, in the review completed in May 2019, the Council noted Mr X was having trouble making regular payments towards his contribution, because he was paying his PAs for overnight stays multiple days a week. The Council wrote:

“Mr X reported that he does have difficulty with paying his contribution and is not able to put the money required into the account every month. When it was discussed why – Mr X reported that he is having to pay for one of his PA's to stay overnight 4 nights a week and this is adding nearly £1000 a month on to his out goings.”

57. The document states there had been changes in Mr X’s health needs, but not his social care needs, and that additional funding and support may be needed during the night. The Council wrote this would “need to be looked in to.”
58. However, despite Mr X stating he was directly paying for additional hours of care, the Council seems not to have assessed whether the care and support plan in place was still meeting Mr X’s needs. The Council appears not to have considered whether the personal budget needed to be adjusted to account for declared overnight care needs.
59. In the review carried out in May 2021, the Council also noted Mr X’s ability to manage his toileting needs had changed, and that he could not manage his finances independently. However, the assessment form says the Council could not complete its review until it had resolved the direct payment audit and financial assessment issues. I have seen no indication the Council considered whether any changes to Mr X’s care and support package were needed as a result. Again, the Council appears not to have considered whether the care plan and personal budget allocated to Mr X were sufficient as part of its review of Mr X’s needs.
60. I have therefore found the Council at fault for failing to consider whether the care plan and personal budget allocated since April 2019 fully met Mr X’s care and support needs.
61. As set out in paragraph 15, councils should also support individuals to use and manage their direct payments properly. The information I have seen suggests the audit of Mr X’s direct payments focused on whether he was making the correct contribution. However, the Council appears not to have offered support to Mr X in managing these payments. This is particularly relevant, given it had noted Mr X was having difficulty managing aspects of his financial affairs. I have found the Council at fault for not providing Mr X with sufficient support to manage his direct payments.
62. These faults caused Mr X an injustice. The assessments completed in 2019 and 2021 suggest Mr X declared changes in his needs, requiring additional hours of PA care and support. The information documented by the Council suggests Mr X was paying for this additional care directly, with the Council being aware this was the reason he was not making regular payments towards his personal contribution. It also suggests Mr X had some difficulty managing his financial affairs. However, the Council appears not to have acted on this information. The Council not addressing this causes uncertainty as to whether the Council should have been paying more towards Mr X’s care and support needs, through an increased personal budget.
63. The Council is entitled to ask Mr X to pay his agreed contribution towards the cost of his care. However, the Council appears not to have considered whether personal budget allocated to Mr X was enough to meet his needs, for approximately two years. This means it is possible Mr X paid for care the Council should have paid for during this time, incurring unwarranted debts and having less money to pay towards his personal contribution as a result. If the Council had agreed that Mr X did have care needs requiring extra hours of overnight PA support, the Council may have increased the personal budget to account for this.
64. Mr X has told the Council his financial information from this period is incomplete or unavailable. Because of this, and the passage of time, it may be difficult to retrospectively identify how much care Mr X paid for, beyond that set out in his support plan. The Council may also now be uncertain whether it was necessary for Mr X to have paid for additional care.
65. On a balance of probability, however, I believe Mr X likely did pay more for care than he should have done during this period, something the Council acknowledged was happening at the time. The Council should account for this when calculating the amount it says Mr X owes and take steps to address this.

Complaint the Council sent requests for payment at inappropriate times

66. Mr X told me the Council had issued invoices for payment at unsociable hours via email. Mr X said these invoices were sent during the night, meaning he often saw them first thing the next day. He said this caused additional anxiety and distress on a regular basis.
67. The Council told me this was due to the way its systems completed reconciliation processes. It said reminder letters and invoice uploads were completed out-of-hours, as it was quicker and more cost-effective to do so. Reminders for payment are issued automatically.
68. The Council is entitled to issue reminders for payments as part of its administrative duties. It is for the Council to decide how best to do so, taking account of local circumstances and the most effective allocation of its resources. I have not therefore found the Council at fault for this.

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Agreed action

69. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Mr X for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. In addition to backdating the financial assessment, the Council should review the care and support plan and personal budget allocated to Mr X from May 2019 to March 2022. In doing so, it should:
1. decide whether the plan and personal budget were sufficient for Mr X’s needs during this period, considering the changes in Mr X’s health and care needs documented at the time;
2. invite Mr X to provide evidence of any payments he made for overnight care and support, beyond the hours set out in his care and support plan, during this period;
3. consider whether to reduce Mr X’s existing debt to account for any overnight care Mr X directly paid for; and
4. write to Mr X to explain its decision and provide a copy of this letter to the Ombudsman.
3. Pay Mr X £250 in recognition of the remaining uncertainty and distress caused by the Council’s failure to conduct a financial assessment for two years, and for not consistently responding to Mr X’s emails. This figure would be inclusive of the £100 already offered to Mr X, if this has not yet been paid. In line with the Ombudsman’s Guidance on Remedies, this should be paid to Mr X directly and not offset against any existing debts.
70. The Council should provide us with evidence it has complied with the above actions.

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Final decision

71. I have completed my investigation with a finding of fault. I have made recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman