Decision Date: 27th September 2019
Mr X complained on behalf of his wife, Mrs Y.
Mrs Y lived with health conditions and disabilities which caused her significant difficulty with daily living tasks. She received a personal budget via direct payment from the Council to employ support for ten hours daily whilst Mr X provided her support the rest of the time.
In April 2017, the Council assessed the contribution Mrs Y had to pay towards her support as zero.
In late 2017 the Council’s office proposed changes to the charging policy. The changes included removing the option to assess a couple if this would be financially beneficial to the person.
This meant the Council would only calculate a person’s charge based on their own finances, including 50% of any joint assets or liabilities, regardless of habitual subsidising of one by the other out of assets that would otherwise be counted.
The Council wrote to advise people of the changes in March after a period of consultation. It said the change would apply from April 2018 and said Mrs Y’s contribution would now be £94.72 per week, due on 9 April.
Mrs Y did not see this advice until she returned from a break on 14 April.
On 19 April, Mr X complained to the financial services team manager. He copied his complaint to the Chief Executive, the Corporate Director, the Head of service, the Head of complaints and the cabinet Member responsible for adult social care.
He said there was no notice and no explanation of how Mrs Y should meet her costs as an employer. He demanded a “full and detailed” response from each of those listed explaining “how everything has been forecast, calculated and assessed”.
The Council wrote to Mr X to advise that it had logged a formal complaint and passed it to the financial services team to investigate and review the financial assessment. It said the writer would be his central point of contact for his complaint.
The Council visited Mrs Y and Mr X on 2 May and explained the changes. Based on information Mr X gave them, they increased Mrs Y’s contribution to £118.18 per week. They also said they would contact the relevant Council teams to consider waiving Mrs Y’s contribution for six months, and also to increase her DRE allowance.
On 29 May, Mr X contacted the Council as he had not heard anything more.
On 22 June, the Council wrote to Mrs Y to advise the outcome of the review completed at the visit. It had now assessed her contribution as £132.28 per week.
On 27 June, Mr X wrote to the Council saying he and Mrs Y were “exasperated”. He said it seemed the more questions they asked, the more the Council charged Mrs Y. He asked for answers to the questions he had asked. These were about:
- the algorithm it had used to calculate how much money it needed in order to cover the cost of the ten hours of care;
- how much income she could keep, and the rationale behind this;
- what had changed since the Care Act’s implementation;
- how to appeal the decision;
- what might happen if circumstances changed.
On 6 July, the Council responded. It explained:
- it had based the financial assessment on Mrs Y’s income not Mr X’s.
- if circumstances changed, it would update the financial assessment and re-assess Mrs Y’s needs if necessary.
- the initial letter was based on out of date information so the calculation changed once they had up to date information.
- it had looked at the household income and expenses, and decided the contribution should not cause hardship. It asked for details of Mr Y’s income for the last two years so it could reconsider.
- it had initially mistakenly disregarded the full council tax amount instead of 50% when it calculated the contribution of £118.18. Changing this to 50% caused the increase to £132.28 per week. The Council agreed to postpone this increase until 23 July 2018.
On 19 July 2018, a community care officer from the Council reviewed Mrs Y’s care and support. The officer noted that if Mr X’s working hours changed in the future, “there would be an expectation that he would provide a little bit more support”. It said Mrs Y might only need support for six hours a day, five days a week. This “little bit more support” would mean 20 more hours a week provided by Mr X.
On 1 November, the Council wrote to advise of a further change to the way it calculated contributions to care. Mrs Y’s contribution increased to £198.13 per week from 12 November.
On 16 November 2018, Mr X wrote to the Council again. He said he had not received a full response to his previous complaint and asked the six people he had addressed it to, to respond.
On 17 December, the Council wrote to advise that the changes would not be implemented until April and November 2019. Mrs Y’s contribution reverted to £132.28 and the Council said she would be reimbursed.
On 19 December, the team manager for the adult care financial services wrote to Mr X explaining the changes to Council charging policy, and enclosed Mrs Y’s financial assessment.
Mr X remained unhappy with this response and said the Council had not addressed the impact on them personally.
Officers from the Council met with Mr X to discuss his complaint on 23 January 2019; he handed officers a letter setting out his complaint.
On 20 February, the Service Director wrote to Mr X about his complaint addressing each of his points but Mr X was not satisfied.
What was found
The LGO found that the Council was at fault for giving no notice of a significant change to Mrs Y’s contribution in April 2018. The LGO stated that the Council should have allowed at least six weeks’ notice and therefore should reimburse Mrs Y with the first six weeks contribution.
After the first fault identified above, the Council then proceeded to make the same mistake, again. It told Mrs Y of another significant increase in November 2018, without the six weeks’ notice. The LGO again, found the Council at fault. On this occasion the Council acted swiftly to rectify its mistake – it deferred the increase and reimbursed Mrs Y. The Council was not at fault for the changes it made, but for the lack of notice it gave Mrs Y.
It was also at fault for its incorrect calculations. It firstly calculated Mrs Y’s contribution based on out of date information, and secondly the mistaken disregard of the full amount of council tax, not 50%. This caused an injustice to Mrs Y and Mr X as it added significant and avoidable uncertainty, stress and anxiety.
The Council also considered whether the increased contribution would cause the household financial hardship and it decided that it would not. This was a discretionary decision. Although the LGO did not find the Council at fault here, it advised it should consider whether it is appropriate to examine household finances when the contribution is calculated on individual finances. The LGO stated the Council should also provide Mr X with information about how it considers hardship.
The Council did review Mrs Y’s support in July 2018. There was no evidence this was delayed and the review considered the necessary information. However, the LGO found comments made by the reviewing officer unhelpful and somewhat threatening; for example equating a ‘little bit more support’ to 20 hours a week more, was unacceptable. Therefore the LGO found the Council at fault.
The Council was also at fault for not sending a copy of the review document. It must do this as soon as it is completed.
Mr X’s central complaint was about the financial assessment. Although he asked to meet the social worker in his first complaint, the LGO considered that the Council was justified in believing a meeting with officers from the finance team, and having a fresh assessment, would be the appropriate means of responding to his complaint. Mr X did not say Mrs Y’s needs had changed, or that her current support was not meeting her needs, so meeting with the financial team rather than a social worker was a reasonable action.
Mr X copied his complaint to the Chief Executive, the Corporate Director, the Head of service, the Head of complaints and the cabinet Member responsible for adult social care. The LGO considered that it was not necessary for all these people to be involved in dealing with his complaint. The LGO did not find the Council at fault regarding this issue. They were aware of the complaint and could follow up internally to ensure it had been dealt with. They did not need to each respond to Mr X and the Council had provided a single point of contact (the writer from the financial team) which the LGO considered to be good practice.
However, the Council should have provided a written response sooner than it did. Although it had responded in writing to some degree in July and December 2018, it did not address all the issues and Mr X remained dissatisfied. The Service Director’s response in February 2019 was the first written response which clearly dealt with each point he had raised. Mr X’s original letter of complaint was in April 2018, almost a year prior to the full complaint response. The Council was therefore at fault in the way it dealt with Mr X’s complaint.
All in all, the LGO upheld Mr X’s complaint that the Council unexpectedly, and without explanation, increased the charge for Mrs Y’s care from zero to £94 per week, and then to £198.13 per week within six months. It also dealt poorly with their complaint. The LGO recommended the Council reimburse Mrs Y with the first six weeks’ contributions from April 2018, pay Mr X and Mrs Y £250 each for the uncertainty, distress and anxiety it caused and ensure it gives enough notice of changes to contributions in future.
Points for the public, service users, family members and councils
We find it hard to believe that a person’s contribution can go from 0 to £198 per week in six months but the actual complaint is not about the mathematics.
In this case it is not clear that the woman’s charges went up because of the change of policy with regard to no longer taking it into account that the richer of the two may be paying for a proportion of the other’s share of the household expenses. But that might be the explanation.
However, when a council looks at a person’s means, it must ensure that it’s affordable, and that means looking at what else they spend their money on.
Here, the council seems to have set its face against looking at a person’s partner’s situation where it would be beneficial to the service user to do so (ie where the service using partner is used to subsidising the other partner’s living costs) BUT deciding that when it comes to affordability for a service user, it’s a good idea to look at the household income. Having one’s cake and eating it come to mind, but in the context of all the things that are NOT allowed for in the charging framework such as debts, bills etc, it perhaps does make sense.
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The full Local Government Ombudsman report of Nottinghamshire County Council’s actions can be found here