Decision Date: 12 December 2022
What happened
Summary
Ms C was discharged from hospital under the Covid 19 NHS funded care scheme (funding for up to six weeks). The Council completed a care needs assessment in August 2021 and a package of care was put in place for a one-hour call per day in the mornings.
The financial assessment was completed in September 2021, a copy of the financial assessment was provided to Ms C noting her contribution as £105.21 from 30 July 2021 when the NHS funding had ended.
Ms C sent a letter to the Council raising her concerns. The Council spoke with Ms C, reviewed the financial assessment and revised the contribution to £58.13 after changing the way it viewed the household payments made by Ms C’s son. The Council wrote to Ms C to inform her of this and changed the start date from 30th July to 2nd September 2021.
In October, a representative of Ms C’s wrote a complaint to the Council to advise Ms C had considerable debts and some of the items identified in her disability related expenditure had not been included in the assessment.
The Council acknowledged and responded to the complaint, apologising for not including the entire rent liability, which reduced the contribution to £33.72 per week. The Council stated Ms C’s debt would only be taken into consideration, if the debt had accrued as a result of her disability. They advised they would review the matter further, if Ms C contacted the debt company to reduce the payments by extending the period of the loan or reducing the amount.
Ms C complained to the Ombudsman about the way the financial assessment determined her contribution, stating it caused her avoidable distress and had a harmful impact on her health.
The Council undertook a further review of the financial assessment, revised the contribution to £21.56 from April 2022 and agreed to waive outstanding contributions until the Ombudsman’s investigation had been completed.
What was found
The Ombudsman found no fault in how the Council considered the information provided or how it had conducted the financial assessment. Furthermore, the reviews conducted, reduced Ms C’s contribution from £105.21 to £21.56 and it had waived any outstanding contribution.
In respect of considering Ms C’s debt, it is noted in the report that “there is no requirement to consider debt or loan repayments in the relevant legislation” and therefore the Council were not at fault.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public.
Wiltshire Council followed the relevant legislation, Care Act guidance and their own policy, promptly responding to the complaint and offering to waive the contribution up to the date of the Ombudsman’s investigation and subsequent outcome.
Interestingly, the initial financial assessment was backdated to 30 July 2021, whereas we are told that the care needs assessment was not undertaken until August 2021 and the FA not done until September. We think that the LGSCO generally makes no fuss about the backdating of charges, as long as the person knows roughly what their liability was going to be, before the care plan is finalised, because it’s more important to get the care package IN. Notwithstanding that practice, Wiltshire Council changed the start date of the financial contribution to the 2nd September, so it seems that Ms C had some free care beyond the NHS funding.
A principle which has underpinned charging for many years (it used to be the law, but that has been downgraded somewhat by the Care Act) is that Councils must ensure that people are not charged more than it is reasonably practicable for them to pay, and that that charge should be affordable.
The point we would make about the Ombudsman’s approach is that anyone’s legally enforceable debt clearly affects that which they are likely to be able to pay (s17(1) of the Care Act). If one has less than £14250, that capital would necessarily be being ignored anyway, so one could not be regarded as able to pay it from capital – and if one’s capital was ABOVE the threshold, one would be paying full cost for one’s care in any event, which was not happening here. If one is making an affordability plea, one would logically have to open up all of one’s expenditure so that the council could see how one’s Minimum Income Guarantee was being used. But the Guidance requires councils at least to be open to going further than the mere application of the means test set down in the regulations – for ALL charging is discretionary, and payment plans are mandated in the debt recovery annex in the Guidance in any event. We do not think it is enough, in terms of public law, and following the Guidance, to say that only ‘disability related’ debt should be allowed for – although it is at least a start – and that that is why this council said it would look at the matter further if Ms C would contact the loan company (which she declined to do).
The Care and Support (Charging and Assessment of Resources) Regulations sets out a Minimum Income Guarantee (MIG) which stipulates that people in receipt of local authority support, who are not in a care home, need to retain a certain level of income to cover their assumed living expenses. The Care Act states that charges must not reduce a person’s income below the minimum income guarantee, although the authority can allow the person to retain more than this.
Where disability-related benefits are taken into account in a financial assessment, the local authority is under a duty to disregard all such income reflected in expenditure which they deem to be necessary disability-related expenditure, to meet any needs which are not being met by the local authority.
The Housing Costs Disregard is a totally different disregard – it is required to be disregarded by the Care and Support (Charging and Assessment of Resources) Regulations 2014. In assessing means, a council must take account of any housing-related costs which the adult is liable to meet in respect of the adult’s main or only home. The regulations go on to make clear that the disregard is for mortgage payments, rent and council tax (less any benefits in payment for those items). We are not sure how the council’s change of mind about the son’s household payments reduced his mother’s charges; it must be that they were disregarded as her income because such payments are not mentioned in the regulations, and there is discretion to ignore ANY type of income which the council chooses to, in regulation 15(2).
The full Local Government Ombudsman report on the actions of Wiltshire County Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/21-016-067