Summary: Mr C complained the Council failed to consider some of his daughter’s expenses as disability related expenses, within her financial assessment. He also complains the Council has not allocated enough funds in his daughter’s personal budget to enable his daughter to pursue a work opportunity she has identified. The Ombudsman did not find fault with regards to the Council’s actions.

The complaint

1. The complainant, whom I shall call Mr C, complains on behalf of his daughter, whom I shall call Ms D. Mr C complains about the financial assessment the Council carried out to determine what contribution his daughter has to pay towards her care package. Mr C says the Council failed to consider some of her expenses as disability related expenses and should not have taken her Employment Support Allowance (ESA) into account.
2. Mr C says he and his daughter are also unhappy about the lack of (financial) support, information and advice Ms D has received about meeting her needs for further learning, employment.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’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)
5. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

6. I have considered the information Mr C and the Council provided to me. I shared a copy of my draft decision statement with Mr C and the Council and considered any comments I received, before I made my final decision.

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What I found

What should have happened?

7. The Care and Support Statutory Guidance states that: after charging, a person must be left with enough money to pay for daily living costs such as rent, food and utilities. As such, after charging, a person must be left with the minimum income guarantee (MIG). In addition, where a person receives benefits to meet their disability needs that do not meet the eligibility criteria for local authority care and support, the charging arrangements should ensure they keep enough money to cover the cost of meeting these disability-related expenses (DRE).
8. The guidance includes a list of items that councils should consider when assessing disability-related expenditure. The list is not intended to be exhaustive and councils should include any reasonable additional costs directly related to a person’s disability. The list includes “internet access for example for blind and partially sighted people”.
9. Disability related expenses are any extra costs a person may have due to their disability. As such, the Council has to consider which of Ms D’s expenses are different or higher, as compared to the wider population, and whether they are different or higher because of her disability.

Mr C’s complaint about Disability Related Expenses

10. Ms D is sight impaired and receives a care support package via the Council. The Council carried out a financial assessment to find out what contribution Mr C’s daughter would have to pay towards the cost of her care package. It carried out a visit in November 2017 and told Ms D about the result in a letter in December 2017. The letter said Ms D’s contribution would be £42.84/week.
11. However, Ms D was unhappy the Council did not include some of her expenses as DRE and made a complaint. In response to her complaint, the Council agreed to take some of her other expenses into account as DRE, which decreased her contribution to £17.33 a week. It also told her that, in light of the time it had taken to resolve the issues, it would wave her assessed contribution for the period November 2017 – 16 April 2018.
12. Mr C says the assessor who carried out the financial assessment, appeared to know little of his daughter’s disability or her disability related needs as a person living with sight loss. However, the Council told me that any visiting Welfare Benefits Adviser always looks at the customer’s electronic social care record, before a financial assessment visit. They will particularly read the latest Care Act assessment and the allied support plan.
13. Mr C says the assessor did also know little of the Council’s guidance on Disability Related Expenses. However, the Council said:
• Assessors are trained over a six-months period by their peers who accompany them on their initial visits.
• The Welfare Benefits Adviser involved with Ms D’s financial assessment in November 2017 had two years’ experience in their role.
• Specific items of disability-related expenditure need to be referred for consideration to an Operations Manager in the Council.
14. Mr C says the Council should treat the following expenses as DRE.

A top range mobile phone (£5/week for phone + £23/month for contract):

15. Mr C says:
• His daughter needs a particular top range mobile phone, because of her disability. He says the phone has many key features that make it more suitable to her than a different phone. The phone reads documents back to her, reads labels when she goes shopping, and can communicate with her other gadgets (her laptop etc). The mobile therefore enables her to live and function more independently and overcome some of the obstacles she faces due to her disability.
• If the Council does not treat this as DRE, she will not have enough money (left) to continue to pay for this.
16. However, the Council says that
• It does not accept that the full cost of the phone (phone and contract) are related to her disability. Most people of Ms D’s age have a smart phone, which can be deemed a usual method of communication that is unrelated to a disability.
• However, it acknowledged the specific nature of some of the software/apps that Ms D uses to mitigate her disability and made an appropriate allowance to reflect this. Although the Council does not usually allow for the one-off purchase of equipment such as phones and tablets, it made an allowance for Ms D’s use of her phone of £2.50 per week. This was on the basis that it enables her to use apps that may not be otherwise available on other mobiles and which facilitate her independence. The Council awarded this on a discretionary basis, taking into account Ms D’s exceptional and specific circumstances.
• It also made the following additional discretionary allowances for disability-related expenditure: Tablet (£2.75 per week), Laptop (£8.00 per week), a laser printer (£0.82 per week), paper / ink for printer (£2.00 per week), and IT equipment maintenance and insurance (£2.17 per week).

Fast / broadband Internet (£10/week):

17. Mr C says:
• The Council has only allowed £3.77, even though the total cost is £10 a week (line rental + £27/month broadband).
• The Council should treat the cost of this as DRE because “internet access for example for blind and partially sighted people” is mentioned as an example of DRE in the Care Act Guidance and the Council’s DRE Guidance (see paragraph 8 above). Due to his daughter’s disability, she cannot do a lot when she is at home. She cannot watch TV, read a copy book etc. She is therefore totally dependent on her internet to entertain herself, read things etc. Through the internet, his daughter has access to information because her computer can read things back to her. Mr C says the Internet contributes to his daughter’s social inclusion by giving her the ability to communicate with organisations, individuals and family.
• He does not accept the Council’s argument that “The majority of people of her age, have internet access”. According to a recent newspaper article, most people (53%) who are on low income (just like his daughter) cannot afford broadband.
18. However, the Council says that
• It does not accept that the full cost of the broadband is related to her disability. The majority of people of her age have internet access, which can be deemed a usual method of accessing information, communication and entertainment unrelated to a disability.
• While ‘internet for sight impaired’ is included in the list of DRE examples in the guidance, it is a list of examples that ‘should’ be included in terms of a consideration of disability-related expenditure. It is not however a ‘must be included’ list.
• Furthermore, there is no requirement in law specifying a council needs to consider the entire cost of internet as disability-related expenditure. Any approval of costs, in part or full, is at the discretion of the Council’s Operations Managers on the basis of the evidence provided to them. The Council has acknowledged the specific nature of Ms D’s disability and made an appropriate allowance when considering her DRE.

Boiler inspection/maintenance (£2.80/week)

19. Mr C says:
• The Care Act Guidance (Annex C49) says: “The purpose of the minimum income guarantee is to promote independence and social inclusion and ensure that they have sufficient funds to meet basic needs such as purchasing food, utility costs or insurance. This must be after any housing costs such as rent and council tax net of any benefits provided to support these costs”
• Private renters, nor housing association or council tenants pay for the cost of annual inspection and yearly maintenance of domestic boilers installed in their homes for heating and hot water. This means they do not have to pay for this from their MIG. However, his daughter must pay for this from her MIG as a local Council lease holder. This is unfair. It is a payment for somebody towards housing costs and should therefore be disregarded in the calculation of her income.
20. However, the Council says that:
• It does not accept that the cost of Ms D’s boiler service is related to her disability. This expenditure is in line with normal household bills and is not related to a specific disability.
• The Care and Support (Charging and Assessment of Resources) Regulations 2014 state in Part 1 (3) that “housing-related costs” - any mortgage repayments, payments by way of rent or ground rent, council tax or service charges (other than service charges which are ineligible under Schedule 1 to the Housing Benefit Regulations 2006) – must be disregarded for the purpose of the financial assessment. Boiler inspection and maintenance is not listed as a compulsory disregard and therefore the Council has not classed it as a ‘housing-related cost’ under the Regulations.

Contents insurance (£1/week):

21. Mr C told me the Council has allowed building insurance as a DRE, but not contents insurance. However, contents insurance is also on the Council’s own list of accepted building costs.
22. However, the Council told me it has allowed Ms D £12.70 per week (which increased to £13.08 per week for 2018-19) to cover the cost of both buildings and contents insurance. If Ms D disagrees with the amounts that have been allowed for these, she can ask for a reassessment on receipt of evidence of her current costs.
23. Mr C told me he was happy with the response from the Council.

Assistance dog expenses (care and upkeep at £5 a week)

24. Mr C says:
• His daughter has a guide dog because of her disability. As such, she incurs expenses for the dog. The charity “Guide Dogs” meets most of the costs of owning her mobility dog. However, they do not cover the cost of:
1. Cleaning products, paper towels, wipes and grooming products
2. Bedding: replacement and washing of bedding
3. Treats for training, bone’ gnawing and training toys
• These costs should all be treated by the Council as DRE as they are not covered by “Guide Dogs”, but are reasonable and necessary expenses for having the dog.
25. However, the Council says it is not unreasonable to expect people to pay for generic (‘normal’) costs for a pet – particularly cleaning, bedding and toys - out of routine household expenditure. Where a person incurs additional expenditure that is disability-related, and has provided evidence of the costs incurred, the Council’s Operations Managers have the discretion to approve the excess amount requested. The Council has exercised its discretion and allowed £0.50 per week towards these costs, taking into account Ms D’s exceptional and specific circumstances. The Council is not required by law to meet those costs in full but to determine what would be a reasonable and proportionate contribution towards them.

Petrol for the Motability Car (£20/week)

26. Mr C says his daughter decided in August 2017 to use her PIP mobility allowance to lease a Motability vehicle. The cost of the lease is as much as the cost of her mobility allowance. The Council should therefore treat the cost of her petrol as DRE, because she cannot pay for it from her PIP Mobility Allowance.
27. The Council has told me that it has made an allowance towards the cost of fuel of £20 per week, because of the extenuating circumstances which had seen Ms D use up the entirety of her Mobility payment to pay towards the lease cost of the car.
28. Mr C told me he was happy with the response from the Council.

Assessment

29. The Care Act Guidance says that, when carrying out a financial assessment of Ms D, the council should consider any additional expenses a person may have / claim that are related to their disability.
30. This is a decision for the Council to take on the merits of the case. The Ombudsman cannot substitute his judgement on what would be right for what a council has decided. He must consider whether there was fault in the way the Council reached its decision. I found the Council considered the information and arguments Mr C and Ms D provided, and used relevant guidance and its discretion to come to a view as to whether an item should be considered as DRE and (if so) what an appropriate amount would be to apply. As such, I found there was no fault with regards to the way through which the Council made its decision. Without fault, I will not question the merits of that decision.

Mr C’s complaint that the Council should not take his daughter’s ESA into account

31. Mr C says the Council should not take his daughter’s Employment Support Allowance (ESA) into account, as part of her financial assessment.
32. The Council says that ‘Annex C: Treatment of Income’ of the Care Act Statutory Guidance, clearly specifies the range or types of income that must be fully disregarded in a financial assessment. Employment and Support Allowance is not named as a benefit/type of income which a council must disregard, in full or in part. As a consequence, this benefit the Council can legally take this into account in financial assessments.

Assessment

33. I did not find fault with the Council, because the Care Act and its Guidance do not list ESA as one of the benefits that should not be taken into account.

Mr C’s complaint about his daughter’s support plan / personal budget

34. Mr C says:
• Only a quarter of blind and partially sighted people of working age are in employment. Therefore, as obstacles for paid employment are too great for his daughter, she wants to set up a project to benefit the community.
• However, the Council has not put the (financial) support in place to enable her to do this, thereby failing to meet her need for “engaging in work, training, education or volunteering”.
• His daughter needs support with building an online community with potential outreach from a hub, for people living with work limiting chronic illness and disability that have been or are engaged in higher education. The personal assistant (10 hours a week) needs to have IT skills and be able to be competent working with the complicated subject matter. There is also a requirement for project establishment and launch budget to get the project off the ground.
• Some support with courses (£10 a week) to support the project
35. The Council says that:
• It has sent a link with support for visually impaired people to find work, social groups and volunteering roles. It also provided information about the Blind Business Association Charitable Trust, RNIB and the JC Robinson Trust, who offer support, advice and funding to support with projects such as the one Ms D has described
• The Job Centre has said they will need Ms D to contact them directly.
• Advised Ms D that her personal assistance can support her by helping her search online, plan visits and give support to get to courses. However, the Council cannot pay for a course itself.
• Ms D was not using all of her allocated hours (she has a surplus of £5,300), so she therefore has the availability in her budget to increase the number of personal assistant hours to support her with her project.
36. However, Mr C has said that he has been unable to get in touch with the Blind Business Association Charitable Trust. The RNIB has told him they do not have the resources needed to support service users with projects. The JC Robinson Trust do not fund or mentor projects as described by him.
37. Mr C told me that his daughter would welcome a visit from an experienced Senior social worker, to further explore what she would like to do in this area and what support the Council could provide (through her personal budget). The Council told me Ms D can discuss this at her that Care Act review which is scheduled for September 2019.

Assessment

38. The Council has told Ms D that she can use her personal budget to employ an additional personal assistance to help her with finding work (paid or voluntary) or set up a project. However, it has also explained that it cannot pay for courses or provide start-up funds for projects. Ms D will have to find funds for these herself, perhaps by exploring charity funds or other funding means online.
39. There will be another opportunity to explore this further, including perhaps other opportunities, at Ms D’s upcoming care review.

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Final decision

40. For reasons provided above, I did not uphold the complaint.

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Investigator's decision on behalf of the Ombudsman