Council's approach found to be contrary to Fairer Charging Guidance

LGO finds maladministration against Solihull Council for not following Fairer Charging Policy

LGO finds maladministration against Solihull Council for not following Fairer Charging Policy

In its report of 25^th May 2016 the Local Government Ombudsman found that Solihull Council had breached Department of Health Guidance in the way it assessed a service user's charges.

The investigation report states that in 2014 Solihull Council carried out a financial assessment for Mr X as it had arranged for him to receive care at home. The Council decided that Mr X had to pay the full cost of his care as he and Mrs X jointly held capital of over £23,250.

A representative of Mr X complained to the council. The LGO reports the response of the council as being that its Fairer Charging policy was to assess a service user who was part of a couple using the couple’s joint income and capital. The Council would only disregard the capital of one member of the couple in the event it could be proved the service user did not have a legal right to a share of their capital.

The council operated a 2 stage appeal process and the complaint was rejected at both stages.

A complaint was made to the LGO. The LGO report states that:

"In response to our enquiries, the Council said it took into account Mr and Mrs X’s joint capital, rather than Mr X’s share of the joint capital as there was evidence Mr and Mrs X pooled their resources. The Council considered it had interpreted the regulations correctly. But it acknowledged its fairer charging policy did not clearly state its interpretation of the regulations. It therefore decided not to recover Mr X’s outstanding care charges of £3,341.99."

The LGO concluded:

"The Council is at fault in taking account of Mr and Mrs X’s joint capital before applying the capital limit of £23,250. This approach was contrary to the Government’s Fairer Charging Guidance which provides that jointly held savings should be treated as divided equally between the couple. So the Council should have only taken account of half of Mr and Mrs X’s jointly shared capital before applying the capital limit of £23,250."

 The LGO recommended that the council reassess 63 other users whose means would have been assessed under its 2013 policy.

Austin Thornton, head of health and care at Wrigleys comments:

"This extraordinary and embarrassing case shows just how poor local authority decision making can be. This is not a case of an individual officer getting it wrong. This evidently went through the council's policy process, likely received legal approval, was defended through both stages of its complaints process and initially at least to the LGO.

The LGO relied in its decision upon the council's non compliance with the Department of Health Fairer Charging guidance. Fairer Charging (now withdrawn) was mandatory guidance but the case law allows local authorities to depart from even mandatory guidance for good reason. The better legal point is that the charging provision in HASSASSAA 1983[1],  only permitted assessment of the means of the individual receiving the service. So unless the policy of the council to charge couples was only introduced in 2013, the potential injustice will have gone back much further.

 This is also an interesting example of where the LGO is prepared to make a ruling where there is a legal dispute. Practitioners will be aware that the LGO tends to steer clear of anything that that might require it to adjudicate a legal dispute. Notwithstanding that getting the law wrong is one of the most basic aspects of maladministration, the LGO often lacks confidence in its own knowledge of the social care law framework and requires complainants to go to judicial review even where the costs of that will be wholly disproportionate to the sums involved and the issues should be straightforward. 

 The Solihull case demonstrates how bad it can get. But there are many other cases where councils make decisions that are plainly wrong in law to anyone with a decent knowledge of the legal framework. This case demonstrates why it is necessary for the LGO to develop that  knowledge.

 Here it plainly felt confident enough that the law was so clear that the risks of the LGO misinterpreting it were negligible.

 The LGO was certainly right in that judgement.

 HASSASSAA has now been replaced by the Care Act 2014. Charging is regulated according to the Care and Support (Charging and Assessment of Resources) Regulations 2014. Guidance is provided in the Care and Support Statutory Guidance."