Wirral Metropolitan Borough Council at fault for its charging policy and for backdating 2 years of charges without a proper financial assessment

Decision date: 22/10/19

What happened

Mrs J acts as a DWP appointee for her adult son Mr K who has both learning and physical disabilities and does not have capacity to look after his financial affairs. Mr K was in the process of transitioning to supported living accommodation from the family home where he resided with Mrs J in August 2016.

Before he moved, he received a letter from the Council saying that he should pay £29 per week towards his care. This was not following a financial assessment. The letter also said in bold that he must notify the Council of any future changes to his finances.

The Council undertook an assessment of Mr K’s needs in preparation for his move to supported living which acknowledged the support from Mrs J in a section about finances. The accompanying notes suggested that completing the section about finances should have triggered a subsequent financial assessment. However, this was never undertaken by the Council.

Between August 2016 and March 2018 Mr K stopped receiving income support at £105 per week and started receiving an employment support allowance (ESA) of £125 per week. He also was moved from a disability living allowance (DLA) of £77 a week to a personal independence payment (PIP), which was a combined rate of £140 per week.

Mrs J failed to notify the Council of these changes and so Mr K continued to contribute £29 per week to his care.

The Council checked with the Department for Work and Pensions in March 2017 and was made aware of the changes to Mr K’s finances but did not act upon this information.

In April 2017 the Council wrote to Mrs J advising of the ‘annual uprating’ of welfare benefits and enclosed a copy of Mr K’s financial assessment. The letter clearly identified Mr K as STILL receiving income support and DLA, even though the council ‘knew’ otherwise. However, Mrs J failed to notify the Council of the changes at this point.

The Council checked again with the DWP in March 2018 and this time acted on the information, reassessing Mr K’s financial contribution as £57 per week and backdating this to the beginning of August 2016.

The Council wrote to Mr K advising that it would invoice him for the balance of £2480. It did not explain why the charge had increased or the decision to backdate the payments.

Mrs J challenged the Council, who suggested that she pay £120 a month from Mr K’s income (which was at the time £150 a week). Mrs J said that only £30 a week was left after she had paid the supported living provider for food and utilities and that this money is spent on Mr K’s other expenses.

The Council responded by reminding Mrs J of the statements it had included in letters advising users to notify it of changes to income. It said that it had backdated the charges because of the fact that Mr K had been receiving a different kind of benefit to that which was on record since August 2016.

During the Ombudsman’s investigation, the Council realised that Mr K had not actually moved until the end of August and reduced the bill to £2400.

What was found

The Council put forward two reasons for why they should be allowed to recover the backdated charges:

  • The financial changes to Mr K’s incomes
  • The Council changed how it calculated Mr K’s assessed contribution taking account of his care needs in the night.

The Ombudsman thought that it was reasonable for the Council to have started out with the presumption that it could have backdated the charges, as Mrs J should have alerted them to the changes in Mr K’s income.

However, Mrs J would have needed an expert’s level of knowledge of care charging law to have been aware of the change in calculation or Mr K’s night-time needs.

The Ombudsman found the Council at fault for attempting to recover this part of the backdated charge.

Fault was also found in the Council’s backdating of the charges before 1st September 2017 as Mr K had lived in supported living accommodation for 20 months without being financially assessed.

The sending of ‘annual uplift’ letters which may have triggered a financial reassessment can sometimes be sufficient to meet the government expectation of the Council to review a client’s financial assessment every twelve months. However, it is not sufficient in a case where the Council knows that there has been a change in circumstances which could affect the charge, such as a move from living with family to a supported living setting.

The Ombudsman also found the Council at fault for gaps in its charging policy as it fails to address how often financial assessments will be undertaken and people’s situations can change and they must be able to assert unaffordability, somehow. There was a lack of any policy guidance explaining to officers that before the Council writes to a user of care services asking for recovery of backdated charges, it must consider if that is reasonable in all the circumstances of the case. The LGO said this:

I also have some concern about the Council’s attempts at recovery in this case. I recognise it has showed patience in not pursuing recovery while Mrs J pursues her complaint and that goes to its credit. It also says its suggested repayments of £120 per month were a basis for discussion, implying it was open to Mrs J to negotiate a lesser amount. But I cannot see how Mr K could ever afford the suggested amount. Because this would deprive him of all surplus income once Mrs J paid his ongoing care charges and living costs. Mr K will need money to meet other needs; clothing being just one example. I stop short of finding fault recognising negotiation was at an early stage. But government guidance is clear that affordability of repayments is a core principle in any recovery arrangement.

It was found unacceptable that the Council claimed it was not aware of any changes in Mr K’s income when in truth it had known for over 12 months. Communication issues were also highlighted such as not giving an explanation to Mr K of why his contributions were being increased.

Remedies

The Council has agreed that within 20 working days it will:

Provide Mrs J with a written apology accepting the findings of this investigation.

  • Write off all sums owing for backdated care charges by Mr K that pre-date 1 September 2017.
  • Of the remainder, calculate the percentage of the outstanding backdated care charges attributable to the change in calculation resulting from Mr K’s night-time care needs and write this off also.
  • Write to Mrs J with its calculation of any remaining sums owing (i.e. showing the calculations and b) and c) above) and invite her proposals for repayment (unless the Council should decide it is uneconomic to recover the balance). The Council should refer to Annex D of the Care and Support Statutory Guidance in deciding whether to accept any proposals made by Mrs J.
  • Pay Mrs J £200 in recognition of the distress caused by its actions and poor communications.
  • Arrange for a review of Mr K’s current contributions to his care to take place within three months of a final decision.

Points for the public, service users, families, advocates, and charging officers

  • Section 14 is the root of the charging power for all adults’ social services provided under s18-20 of the Care Act (ie via a care plan, after eligibility has been found after an assessment)
  • The statutory guidance says: “A local authority must regularly reassess a person’s ability to meet the cost of any charges to take account of any changes to their resources. This is likely to be on an annual basis but may vary according to individual circumstances” (Section 8.17).
  • They may have less than a purely computer driven spending analysis tool would suggest: their capital and savings remain their own money all along and they may have had debts, made reasonable gifts, spent money on legal advice, etc.
  • The social services charge does not take precedence and is not secured. The client is entitled to services to meet needs, even if they don’t pay their social services charge.
  • The guidance also says “local authorities should develop and maintain a policy” around charging. Among other matters, this is to ensure:
  1. It does not charge people more than it is “reasonably practicable” for them to pay.
  2. Consistency, to reduce variation in the way people are assessed and charged.
  3. Transparency, so people know what they will be charged (Section 8.45).

“8.2 Where a local authority arranges care and support to meet a person’s needs, it may charge the adult, except where the local authority is required to arrange care and support free of charge. The new framework is intended to make charging fairer and more clearly understood by everyone. The overarching principle is that people should only be required to pay what they can afford. People will be entitled to financial support based on a means-test and some will be entitled to free care. The framework is therefore based on the following principles that local authorities should take into account when making decisions on charging. The principles are that the approach to charging for care and support needs should:

  • ensure that people are not charged more than it is reasonably practicable for them to pay
  • be comprehensive, to reduce variation in the way people are assessed and charged
  • be clear and transparent, so people know what they will be charged
  • promote wellbeing, social inclusion, and support the vision of personalisation, independence, choice and control
  • support carers to look after their own health and wellbeing and to care effectively and safely
  • be person-focused, reflecting the variety of care and caring journeys and the variety of options available to meet their needs
  • apply the charging rules equally so those with similar needs or services are treated the same and minimise anomalies between different care settings
  • encourage and enable those who wish to stay in or take up employment, education or training or plan for the future costs of meeting their needs to do so
  • be sustainable for local authorities in the long-term”
  • This Council had a Charging and Financial Assessment Policy. This reinforced key messages around financial assessments contained in the Care and Support statutory guidance. For example, setting out the principle the Council can charge for most care services but also explaining some exceptions to this rule. It did not cover administrative matters such as how or when someone receiving care services would receive a financial assessment, nor how it would review such assessments. That is poor practice and does not follow the Guidance, to say the least.
  • Annex D to the Care and Support Statutory Guidance covers the issue of debt recovery, where users of services have unpaid care charges. This says that before considering repayment councils “should consider whether it is appropriate to recover the debt”. It says the Council should consider issues including:
  1. “where the amount of the debt is small and the costs of recovery would be disproportionate
  2. the person or their representative could not reasonably have been aware that the asset in

question needed to be included in the financial assessment” (point 9).

  • The Guidance also says that one of the principles underpinning debt recovery is that “repayments must be affordable” (point 6).
  • The Council had a corporate debt policy. This referred to different types of debt owed to the Council (for example, outstanding council tax or housing benefit overpayments). It did not make specific reference to debts owed for care contributions or the government guidance quoted above. In a section addressing the general principles of debt recovery the policy referred to the importance of transparency which it said includes “explaining clearly the reasons for taking any recovery/enforcement action”.
  • The policy also said the Council will act proportionately when collecting debts and take account of individual’s ability to repay.
  • If a council has a policy that doesn’t deal with social services charges specifically, given the statutory duty to meet needs, that could be unlawful.
  • If a policy does deal with these matters specifically but the council takes no notice of its policy or any other relevant corporate policy it has set up for itself, that is a breach of legitimate expectation, and hugely relevant to judicial review of the action or decision taken. It could be maladministration / fault in LGO terms, too, to ignore that expectation.

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The full Local Government Ombudsman report on the actions of Wirral Metropolitan Borough Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/charging/19-000-024