Summary: The Council failed to properly consider Mrs B’s disability-related expenditure when determining how much she should contribute towards the cost of her care. It also failed to clearly explain its intentions in relation to the recovery of unpaid contributions. The Council has agreed to write-off some of the unpaid contributions and review Mrs B’s requests for items to be considered disability-related expenditure. It has also agreed to make service improvements.

The complaint

1. Mrs B complains that there were failings in the way the Council has managed her direct payments. In particular, she complains that the Council:
• Is requiring her to pay her assessed contribution into her e-card account.
• Is failing to follow statutory guidance by refusing to pay her direct payments into a bank account and giving no option other than to use an e-card to pay for goods and services.
• Is wrongly including Mrs B’s severe disability premium when it is calculating how much she should contribute to the cost of her care, which Mrs B considers to be discriminatory.
• Is requiring her to pay £741.60 for unpaid backdated contributions.
• Has not properly assessed her disability-related expenditure.
• Has not made reasonable adjustments to the way it communicates with her.
2. Mrs B says the Council’s failings have caused her significant distress and have affected her health and well-being. She says that she has also had difficulties spending her direct payments.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

7. We cannot decide if a council has breached the Equality Act as this can only be done by the courts. However, we can find a council at fault for failing to take account of its duties under the Equality Act. Councils will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.
8. We cannot always respond to complaints in the level of detail people might want. We have limited resources and must investigate complaints in a proportionate manner, focusing on general themes and issues, rather than providing a response to every individual issue raised in a complaint.
9. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

10. I have investigated the complaints detailed in paragraph one of this statement.
11. Mrs B has also made other complaints relating to her direct payments which I have decided we should not investigate. As explained in paragraph five, we cannot normally investigate complaints about matters which the complainant has taken more than 12 months to complain to us about. Mrs B has explained why she did not make her complaints sooner. I have decided it is reasonable to exercise discretion to investigate Mrs B’s complaints about matters she has become aware of since January 2021, or where the alleged fault is continuing. I consider it would have been reasonable for Mrs B to complain to us sooner about her other late complaints and have therefore decided not to investigate them now.
12. I have also not investigated Mrs B’s complaint that the Council removed £1947.43 from her e-card account without advising her in May 2021. At the time, there was around £5000 in unused funds in Mrs B’s account. As explained in paragraph six, we will not investigate where we consider the injustice is not significant enough to justify our involvement. For this reason, I have decided not to investigate this aspect of Mrs B’s complaint.

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How I considered this complaint

13. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Relevant legislation and government guidance

14. Councils can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, sections 14 and 17)
15. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by national government and reviewed each year. A council can allow people to keep more than the MIG. (Care Act 2014)
16. Councils can take disability-related benefits into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. Government guidance sets out a list of examples of such expenditure. It says any reasonable additional costs directly related to a person's disability should be included. (Care and Support Statutory Guidance, paragraphs 39 and 40)

Key events and analysis

Contributions

17. Mrs B has complex physical and mental health needs. She receives direct payments from the Council, which are monetary payments which enable people to arrange their own care and support to meet their eligible needs.
18. The Council has carried out financial assessments and decided that Mrs B should contribute to the cost of her care. Mrs B has not done so since 2015, when the Council changed its procedures.
19. At that time, Mrs B entered into a Direct Payment agreement and agreed to ‘pay any contribution as assessed’. Mrs B has not paid her assessed contribution because she considers the Council is taking her contribution at source, before it pays the direct payment into her account.
20. I have considered the Council’s policy and procedures. The Council only pays the difference between the amount the service user needs to meet their eligible needs and the assessed contribution; the service user is expected to pay their assessed contribution into their account too so that there is enough money in the account to meet all of their eligible needs. I do not consider the Council is wrong to ask Mrs B to pay her assessed contribution into her e-card account.
21. I have seen letters the Council has written to Mrs B about this since March 2022, and I consider it has clearly explained how she should pay her assessed contribution.
22. When the Council wrote to Mrs B in March 2022, it said that she had not paid her assessed contributions for the period 11 April 2016 to 11 March 2022, which totalled £6,949.73, but it had made the decision to not pursue Mrs B for this charge. The Council also told us in December 2022 that it had written off these unpaid contributions, which we relayed to Mrs B. However, when the Council wrote to us again in July 2023, it said that it had not written off any contributions owed by Mrs B.
23. I do not consider the Council has been clear about its intentions regarding the unpaid contributions. This lack of clarity will be causing Mrs B distress, as she does not know if the Council will decide to take action at a later date. I consider it would be reasonable to write to Mrs B confirming that it has written off the unpaid contributions of £6,949.73 for the period April 2016 to March 2022, considering it told us that it had done so, and it did not tell Mrs B that this debt was accruing until March 2022. It should also decide whether to recover the outstanding contributions due since March 2022, in accordance with Annex D of the Care and Support Statutory Guidance.
24. As well as the unpaid contributions referenced in the previous paragraphs, the Council considers Mrs B owes £741.60 in backdated contributions for the period 10 June to 24 November 2019. This relates to a retrospective financial assessment after Mrs B’s benefits increased in June 2019. The Council has told Mrs B that the invoices totalling £741.60 remain due and payable.
25. Mrs B says that she was told in 2019 that she would be receiving an invoice for the backdated contributions which would be for ‘a couple of hundred pounds’ but that she did not receive it. She says the Council did not contact her about the backdated contributions again until 2021.
26. The Council has provided a copy of the invoices it says it sent to Mrs B in 2019. It has also provided details of other contact it has had with Mrs B since 2020 relating to these unpaid invoices. On the balance of probabilities, I consider it likely that these invoices were sent to Mrs B in 2019. But in any event, Mrs B was aware that she owed some money in 2019 and she could have checked the amount with the Council. The Council has offered to arrange an affordable payment plan. This seems reasonable to me. I have found no evidence of fault in the way the Council has decided that Mrs B should pay the backdated contributions.
27. Mrs B has asked the Council if it could take the £741.60 out of her e-card account, rather than asking her to repay it. The Council says any unused money in Mrs B’s account is Council funds and should not be used to pay a debt which Mrs B is responsible for. This is a view it is entitled to reach. However, taking the £741.60 out of the account would seem to be a way for the Council to recover the amount it overpaid in 2019, and I recommend that it reconsiders doing so.

Disability-related expenditure (DRE)

28. If a council takes a disability benefit into account when calculating how much a person should contribute towards the cost of their care, they must also assess DRE in the financial assessment. This is because the Care Act statutory guidance says councils must leave individuals with enough money to pay for necessary disability-related expenditure to meet any needs not being met by the council. DRE are costs that arise from a disability or long-term health condition.
29. Mrs B considers the Council has failed to properly assess her DRE, and if the Council had carried out its assessments correctly, it would not be asking her to contribute to the cost of her care.
30. It is not our role to determine what should be considered a DRE. But we can consider whether there was fault in the way the Council reached its decisions. I have considered Mrs B’s claims and in particular, those expenses which the Council does not consider to be necessary DRE.
31. Mrs B asked the Council to consider her administrative costs, such as copy paper, ink, disable adapted hole punch, postage and other stationary items. She did not provide receipts but said she considered £5 per week would be a reasonable amount. Mrs B also asked for an additional £354 to cover legal advice she obtained concerning a carer she employed.
32. The Council decided the cost of the legal advice was not a necessary DRE. It explained that free advisory services were available and it was Mrs B’s choice to pay for legal advice. I have found no evidence of fault in the way the Council reached its decision here. However, I have seen no evidence to show that the Council considered Mrs B’s other administrative expenses. This was fault.
33. In the Council’s response to my enquiry letter, it said that Mrs B should not have administrative expenses relating to hard copies of documents because she utilises electronic methods of communication. I consider the Council should provide its reasoning to Mrs B and give her the opportunity to request a review of its decision. It should also consider any evidence Mrs B provides to show the expenses she has incurred.
34. Mrs B also asked the Council to consider the expenses she incurred having shopping and other items delivered to her house. The Council agreed to include an amount to cover her shopping deliveries, but not for other items. The Council explained that people without disabilities would equally be subject to these costs and so they are not necessary DRE. Mrs B disagrees with the Council’s decision, but I cannot question a decision which has been made without fault. I am satisfied that the Council properly considered whether to include these items as necessary DRE. I have found no evidence of fault in the way it reached its decision.
35. Mrs B’s care plan refers to the support she receives from her dog. The Council provides a set amount for welfare and support animals. Mrs B has provided evidence to show that she spends more than the set amount caring for her dog. The Council says that while it recognises the importance of companionship and that this leads to some extra costs, it will not fully fund the cost of having a pet.
36. The Council must take into account any reasonable additional costs directly relating to a person’s disability. The Council accepts that the cost of caring for Mrs B’s dog is related to her disability and so if the costs are reasonable, the Council must take them into account.
37. Councils can decide not to allow for something where a cheaper alternative is available. However, they should not be inflexible in the costs they accept and should always consider individual circumstances. Where a person’s costs are higher than the set amount the Council normally allows, it should carry out a full assessment to determine if the costs are reasonable. The Council did not do so, and instead rigidly applied its policy. I consider the Council fettered its discretion. This was fault.
38. Mrs B considers the amount of DRE the Council has allowed for her broadband costs is too low. She provided evidence of her monthly bills and the Council allowed just over half of this amount. It did not explain why it decided not to allow the full amount. This was fault.
39. Mrs B asked the Council to include the costs she incurs paying for Sky TV as DRE. The Council said that it does not consider television costs to be DRE, but it did not explain its reason for this. This was fault. The Council should properly consider what Mrs B has said about why she considers it is DRE, and if the Council decides it is not, it should explain its reasons to Mrs B.
40. Mrs B says that she uses more water than average due to her disabilities and she has provided evidence of the amount she has paid. The Council has asked Mrs B to find out if she is entitled to any discounts and after she has done so, and provided a forecast of her water consumption, it will consider including the additional water costs she incurs. I do not consider it is unreasonable for the Council to ask Mrs B to take this action before it decides how much it should allow going forward.

Charging policy

41. Mrs B considers the Council’s charging policy is discriminatory because it does not disregard severe disability premiums when carrying out financial assessments.
42. Mrs B receives Employment Support Allowance (ESA) with the enhanced and severe disability premiums. She also receives Personal Independence Payments (PIP) enhanced daily living component and mobility component.
43. When calculating how much Mrs B should contribute to the cost of her care, the Council disregards the PIP payments, but includes the ESA she receives.
44. I have considered the Care and Support Statutory Guidance and have seen nothing to suggest the Council should disregard the enhanced or severe disability premium elements of Mrs B’s ESA.
45. It is not the Ombudsman’s role to decide if the Council’s charging policy is discriminatory. If Mrs B considers this to be the case, she may wish to consider taking legal action.
46. In 2020, the courts found that another council had not considered the differential impact of its charging policy on the most severely disabled people. Following this judgement, the Council reviewed its charging policy. Mrs B considers the Council’s previous policy was discriminatory, and this is another reason she should not have to pay the invoices for the backdated contributions of £741.60.
47. The Council says its previous policy did not discriminate against people in receipt of ESA. It says that it has always been and remains more generous to those people in receipt of ESA than the government guidance on Minimum Income Guarantee.
48. As explained, it is not the Ombudsman’s role to decide if a council’s charging policy is discriminatory. However, I have considered how the Council calculated the amount Mrs B should contribute in 2019. I am satisfied that the Council carried out the assessment in accordance with the Care and Support Statutory Guidance and its charging policy.

E-card

49. The Council pays Mrs B’s direct payments into an e-card account. The Council’s e-card works in the same way as a CHIP and PIN card and is also contactless.
50. Mrs B complains that the Council has refused her requests for her direct payments to be paid into a bank account, rather than onto the e-card. She says that this causes difficulties because some service providers require payment in cash.
51. Government guidance says pre-paid cards should not be provided as the only option to take a direct payment. It says it is important that the service user is still free to exercise choice and control and there should not be blanket restrictions on cash withdrawals from pre-paid cards.
52. The Council says the e-card is not the only option and it also offers a managed account service. It says where a service user wants to be able to make cash withdrawals, it will establish the reason for this and whether all other options have been exhausted during the care review, and it will agree cash withdrawals where this is deemed a necessity.
53. The Council says there are very few services that don’t take card payments, so it is important to have a discussion about which outcomes in the care plan Mrs B is restricted from accessing without cash. It says an option that can be considered is for Mrs B to use her client contribution to cover any cash requirements.
54. I do not consider the Council is failing to comply with the requirement in the Care and Support Statutory Guidance to not have blanket restrictions on cash withdrawals from prepaid cards or the requirement that pre-paid cards should not be provided as the only option to take a direct payment.

Reasonable adjustments

55. As a public sector body, the Equality Act 2010 requires the Council to consider making adjustments if people with disabilities have problems using their service. If a person is placed at a substantial disadvantage because of their disability compared with a non-disabled person, the Council must take such steps as it is reasonable to have to take to avoid that disadvantage.
56. Mrs B complains that when she was communicating with the Council about her DRE, it forced her to repeat distressing information and failed to make the reasonable adjustments requested by medical professionals.
57. Mrs B has provided several letters from medical professionals which recommend how professionals should engage with her, including not asking Mrs B to repeat historical information, particularly in relation to trauma. Mrs B has also previously asked that when carrying out Care Act assessments, the Council not ask for explanations for information it already holds.
58. The Council previously agreed to make some adjustments to the way it carried out Care Act and Occupational Therapy assessments, but I have found no evidence to show that it has agreed that it will never ask Mrs B to provide information she has already provided, or that it considers this to be a reasonable adjustment. I do not consider the Council contravened any agreed reasonable adjustments when communicating with Mrs B about her DRE. I have found no evidence of fault here.

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Agreed action

59. Within four weeks of my final decision, the Council will take the following actions:
• Apologise to Mrs B for the failings identified in this case and makes a payment of £250 to recognise the avoidable distress caused by those failings. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
• Write off the unpaid contributions of £6,949.73 for the period 11 April 2016 to 11 March 2022, and confirm in writing to Mrs B that it has done so.
• Consider whether to recover the outstanding contributions due since March 2022, in accordance with Annex D of the Care and Support Statutory Guidance.
• Reconsider taking the £741.60 out of the unused funds in Mrs B’s e-card account, rather than trying to recover it from Mrs B. It should write to Mrs B with its decision, and the reasons for its decision.
60. Within eight weeks of my final decision, the Council will take the following actions:
• Review Mrs B’s requests for items to be considered disability-related expenditure and write to Mrs B fully explaining the reasons for its decisions.
• Provide guidance to its officers to ensure they fully explain their reasons for not agreeing any claimed DRE, and that they do not fetter their discretion.
61. The Council will provide us with evidence it has complied with the above actions.

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Final decision

62. I have completed my investigation and uphold Mrs B’s complaint. There was fault by the Council which caused injustice to Mrs B. The action the Council has agreed to take is sufficient to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman