Decision Date: 18 December 2024
Summary
Mrs T complained to the Ombudsman about the Council’s failure to respond to representations she made about attempts she made to engage the Council about her care package service, leading to build-up of a debt and anxiety.
What happened
Mrs T is an adult with mental and physical health needs. In 2021, she was referred to a community support service, where users were not required to pay towards its cost.
In March 2022, the Council decided that they would charge for the service under its charging policy.
Prior to the introduction of charging for the service, the Council assessed service recipients’ ability to make financial contributions. The Council decided to begin charging users from March 2023.
In January 2023, the Council carried out a financial assessment for Mrs T. It concluded that Mrs T could pay around £30 per week towards the cost of the service. In February, it notified her that she would be charged from March 2023.
At the end of February, Mrs T wrote to the Council to inform them that she could not afford the charge previously deemed to be her liability. She said that it would cause her financial hardship.
The Council said that Mrs T’s representation went to its Financial Assessment and Charging Team (FACT). Her correspondence was misdirected by FACT to its commissioning team. The commissioning team then sent the correspondence to the Council’s Head of Adult Social Care.
The Council sent Mrs T invoices every four weeks for the assessed charge, from April 2023 onward. It also increased her contribution charge, in line with an increase in Mrs T’s pension income from that month.
During this time, Mrs T repeatedly asked the Council for updates on its consideration of her case. In May 2023, the Council allegedly considered this at a meeting attended by its Head of Social Care. The outcome was not recorded, nor was Mrs T informed about what was decided. [The investigator does not mention what was allegedly said in this meeting, likely because there was no evidence or proof.]
Mrs T continued to ask the Council for updates, stating that she was becoming ill due to her concerns about the cost.
In July and August, the community support service contacted the Council to ask for an update on Mrs T’s representations. They did not receive a reply.
In December 2023, Mrs T communicated her frustration to the Council at not hearing back, through a complaint.
Later on in December, the Council replied and apologised for not responding to Mrs T’s requests for an update. The Council maintained that it had long been stating that there would be a charge for the service from March and that it had correctly assessed her charge.
In January 2024, Mrs T asked to escalate her complaint. In early April, the Council replied. It recognised the delay in its response, and stated that they should have asked its complaint service to respond but did not. It said it would tell staff to treat appeals this way in the future – ie responding through the complaint service, in accordance with its published policy covering charges for care.
From January 2024, Mrs T stopped receiving the community support service. Her arrears for non-payment of the financial charge were just under £1500.
The Investigation
The Ombudsman found that the copies of the financial assessment correctly recorded Mrs T’s pension. However, Mrs T collected less money, in fact, than recorded as DWP made deductions from her pension each week [this was likely to have been for some sort of previous overpayment, in which case the financial assessment still correctly takes account of the gross notional account; nevertheless this woman would have felt worse off than she was being treated as being, given the reduction in her actual funds and the introduction of a charge for something that had been free for a long time].
She received her pension payments every four weeks. On her own income and expenses breakdown, she declared this as monthly income [so she was actually getting more than she had said, we think (13 x 4 rather than 12 x 4).]
When asked by the Ombudsman, the Council had made certain that Mrs T received all the benefit income she was entitled to. It said its FACT team and the community service used by Mrs T had both checked this and found it to be correct.
It was noted by the Ombudsman that the Council had set up a dedicated team within its adult care service to log complaints, and this was put in place after Mrs T had made representations about the charge [it is unclear at what point they established this team]. The team aimed to reply to everyone, including appeals about financial assessments. All relevant staff including its FACT service were advised to pass appeals to this service.
The Council recognised its failure to deal with Mrs T’s appeal properly. It further recognised that it could not show where it had considered the detail of her appeal, as its reply to the complaint did not show if it had considered if Mrs T could ‘afford’ the charge. To remedy this, the Council proposed writing off all charges owed by Mrs T.
What was found
The Ombudsman found no fault in the way the financial assessment was undertaken by the Council. As it had carried this out in a way consistent with Government regulation, guidance and its own policy; it had invoiced Mrs T correctly. It also informed her when charging for the service would begin, preparing her for the invoices to follow.
The Council was found to be at fault, however, for how it dealt with Mrs T’s expression of dissatisfaction with the charges, which should have been understood to be an appeal or request for a review. It did not pass this to the correct service to deal with. The Ombudsman accepted that human error can occur which may lead to mistakes, but multiple requests from Mrs T for updates on her representations had been ignored. And furthermore, it could not be proven that the Council understood that it needed to engage with Mrs T’s concern that she could not actually afford the charge – affordability being mentioned in the Care and Support Guidance.
The delay and failure to provide an adequate response, in combination, caused Mrs T an injustice. She was caused unnecessary frustration and uncertainty, leading to distress, because of the handling of this matter.
The Council clearly had discretion to reduce or waive the charge, so the investigator could not ignore that that chance had never been properly exercised. When considering if a symbolic payment should be made to Mrs T for the distress caused, the Ombudsman stated that the Council’s action to waive the money owed was a better result than what they could have achieved through a symbolic payment. Therefore, it was decided that a symbolic payment was unnecessary.
The Ombudsman welcomed the Council’s application of improvements to its service since the complaint was made. It had ‘tightened’ the procedure for considering representations on the outcome of financial assessments. It also advised staff on its implementation, so the recommendation of further service improvements were not warranted.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
This report deals with a situation that has been going on for years in councils – ambivalence with regard to HOW to treat dissatisfaction with charges. If a person writes in with a contention that they are struggling because of Disability Related Expenditure, then there should be a review because most councils offer a standard disregard for DRE, but without considering the person’s own situation, as this saves time and aggravation for both the Council and the individual. But since there is an obligation to disregard DRE, there must BE proper consideration of the individual’s situation before the Council can regard its job as done, and therefore this cannot be regarded as a complaint or a dispute.
If the person writes in and simply says ‘this cannot be correct’ they are able to be taken to be saying that they can’t afford the charge, but they could of course be right that the sums have been done wrong or that some basic fact has been misunderstood. A person could be given a welfare benefits check too, which would actively improve their situation, so this is a scenario where a review is a good idea, rather than treating it as a complaint automatically.
It is when a person is saying that the rules have been misapplied or that some sort of wrong has occurred, such as failing to have taken account of a relevant consideration, that it might be treated as a complaint in our view.
We note that the Ombudsman has recently issued a set of recommendations about a new model complaint process in which it allows people to come to the Ombudsman without complaining first, IF a council agrees it has done a proper internal review. This concession to the very poor quality of complaints and the production of statistics about how poor the service must be if the uphold rate is as high as 80% of the already rejected complaints that the Ombudsman then goes on to investigate in full, DOES NOT APPLY to financial assessment and charging issues. We think that the above explanation of the logic to be applied to that area of dissent provides an explanation which fits in with the public law framework.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Knowsley Metropolitan Borough Council (24 001 298) report.
If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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