Summary: There is evidence of fault in this complaint. The Council stopped Miss Y’s direct payment because it wrongly believed direct payments could not be spent on social/community activities, which in this case were identified as an eligible need. It also failed to adequately explain its decision to stop the direct payments. The Council then failed to consider the cost of the activities as DRE.

The complaint

1. Mrs X complains the Council stopped paying direct payments in 2016 for community activities which her adult daughter enjoys, and which are assessed as an eligible need. She complains the Council then failed to consider the expenses in a financial assessment.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I have:

• considered the complaint and discussed it with Mrs X;
• considered correspondence between Mrs X and the Council, including the Council’s response to the complaint;
• made enquiries of the Council and considered the responses;
• taken account of relevant legislation;
• offered Mrs X and the Council an opportunity to comment on a draft of this statement, and considered the comments made.

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What I found

Relevant legislation

Care and support statutory guidance

5. This document sets out Guidance on how councils meet the terms of the Care Act 2014. It says councils can charge for care and support, except where they are required to provide it free of charge, (set out in Section 14 of the Act).
6. The Guidance says a person should not have to pay for care and support out of their capital if they have less than £14,250. It also says councils should disregard any DLA mobility component a person receives when assessing their income.
7. There are certain items of expenditure that can be deducted from a person’s income before the council decide whether a person can afford to contribute to your social care costs called Disability Related Expenditure, or DRE.Councils must take DRE into account when assessing a person’s finances. The financial assessment should set out exactly what the Council considers to be DRE.
8. If a Council takes a disability benefit into account, they must also assess disability-related expenditure in a financial assessment. This is to meet any disability-related needs not being met by them.
9. Examples of acceptable disability related costs include:

• extra washing or special washing powder and conditioner for delicate skin
• special diet
• special clothing or footwear (or extra wear and tear)
• additional bedding
• extra heating costs
• internet access
• any care that social services do not meet
• buying and maintaining disability-related equipment
• any transport costs (both for essential visits to the doctor or hospital, but also to keep up social contacts).

10. Other costs may also be accepted. Councils should not be inflexible and should always consider individual circumstances. Council should consider everything a person has to buy or pay for because of their disability. Councils should not adopt a blanket policy.
11. The Statutory Guidance states that “what is disability-related expenditure should not be limited to what is necessary for care and support”.

Background

12. Miss Y is in her early twenties. She has autism, a related genetic disorder and a learning disability described as severe. Mrs X is the appointee for Miss Y’s benefits.
13. Prior to Miss Y’s 19th birthday the services she received were funded by children’s social services. She received three hours direct payment to allow her to access the community and enable Mrs X to have a break. Payments were paid from 21 September 2013 to 6 June 2014.
14. On 1 September 2014, Miss Y moved from Mrs X’s home into specialist 24 hour supported living facility. She was 17 years old, and still under the care of children’s social services. At that time, it did not have a transition team, so children’s services funded support for adults until the summer following their 19th birthday, in Miss Y’s case this was the summer of 2016.
15. One month after moving in, Miss Y turned 18. The Council says when Miss Y reached her 18th birthday it should have completed a financial assessment, in preparation for her move to adult services. It did not do so. The Council says this was an oversight on its behalf.
16. Miss Y has attended community activities for a number of years, one of which is horse-riding. The Council’s assessment record this, and other activities are as a ‘need’.
17. Prior to Miss Y’s 19th birthday the activities and transport were funded by children’s services via a direct payment. The Council made weekly payments of £51.90 from 8 October 2014 to 30 July 2016. Mrs X says the payments stopped when Miss Y moved to adult services in July 2016. From then onwards Miss Y has funded the activities from her state benefits, and Mrs X has contributed when necessary. Mrs X says she has asked the Council numerous times to explain why the direct payment stopped, but it has not done so.
18. The Council says the direct payment was for horse riding lessons whilst [Ms Y] was living at home. “It ceased when she was moved in to supported living…  This was reinstated until the case transferred to Adult Social Care in the summer of 2016”. The Council confirms the direct payment stopped in 2016 because “At this time [Miss Y] was in receipt of welfare benefits – Employment support allowance and Personal Independence payment and funded activities through this income”. It says “There is no guidance within adult social care as to what payments can be used for. As a local authority, this is something we are addressing through our disability board”. 
19. The Council did not complete a financial assessment of Miss Y until September 2017. Because of this the Council waived all charges between 1 October 2014 to 7 April 2017.
20. I have seen a copy of the 2017 financial assessment. The shows the Council applied a standard allowance of £25 for Disability Related Expenditure (DRE), and that Miss Y’s assessed weekly contribution was £113.72. Financial assessments completed in 2018 & 2019 show a £25 DRE disregard and Miss Y’s weekly contributions to be £119.67 & £124.57 respectively.
21. In response to my enquiries the Council said the calculation was based on activity costs included in the funds paid by the council to the supported living facility. It says Mrs X did not provide information about additional DRE expenses, so it applied a standard allowance of £25 for DRE. Mrs X says in 2016 she was not aware that the cost of activities could be offset as DRE. She says she can provide evidence of DRE, but she wants the Council to explain why it ceased the direct payment.
22. Mrs X says the officer that completed the financial assessment did not ask her about disability related expenditure (DRE). She did not receive a copy of the completed assessment; just a letter notifying her of the outcome. Mrs X began receiving invoices from the Council which she has disputed from the outset and refused to pay.
23. The Council says Miss Y has accrued a substantial debt since 8th April 2017 at £113.72 a week for the financial year 2017/18; £119.67 a week for the financial year 2018/19; and £124.97 for the financial year 2019/20.
24. Mrs X says Miss Y cannot afford the assessed contribution and paying this would significantly reduce her quality of life as she would not be able to afford to partake in community activities she currently enjoys, and which are identified as an eligible need.
25. The Council says Miss Y does undertake several activities, including horse-riding, “which are necessary due to her disabilities…”. And it is likely these could be included as DRE and could be offset against the weekly charge she is expected to pay, but it needs further information from Mrs X, and she has been unwilling to engage in the financial assessment process until she receives an explanation about why direct payments were stopped in 2016, and that, At present there has been no impact of the Direct payments ceasing. “All of Miss [Ms Y’s] needs are met by the 24-hour support provided through [Care Provider]”.
26. Mrs X disputes this and says neither the Council not the Care Provider funds community activities. Miss Y funds this out of her state benefits and doing so has left her financially disadvantaged.
27. Mrs X says she has continued to complain about this, and the assessed charge since 2017. Despite this the Council has not provided an adequate response.
28. During this investigation, Mrs X provided me with a copy of an email she sent to the Council on 3 July 2019, chasing a response to a complaint she submitted In January 2018, she attached a copy of a complaint dated January 2018. I have seen a copy of the reply she received from the Council on 4 July 2019, which says “I am sorry but we are not able to give you any further response while the Ombudsman is dealing with your case”.
29. I have seen a copy of a needs assessment the Council started in February 2019. Under the section, “Making use of necessary facilities or services in the local community” it records eligible needs in attendance at a day service 2 days a week and community activities 3 days a week, supported by on-site support staff, and that “[Mrs X] supports her daughter with involved activities in the week eg horse riding”. The assessor recorded Mrs X’s comments “that the family are involved as CWAC ceased Direct payments to [Miss Y] in 2016”.

Analysis

30. Councils have a discretion (a choice) about whether to charge for services. The general approach must be set out in its charging policies and it must be able to explain each individual decision.
31. In this case the Council stopped a direct payment which funded activities assessed as an eligible need without notice or explanation. When Mrs X complained about this, the Council failed to respond. To date, Mrs X has no understanding why the payment was stopped. The Council’s failure to explain why caused Mrs X avoidable confusion and distress.
32. The Council says the direct payment stopped because Miss Y transferred to adult services and it has no guidance on what the payments can be used for. The Care & Support Statutory Guidance 12.34 says, “The direct payment is designed to be used flexibly and innovatively and there should be no unreasonable restriction placed on the use of the payment, as long as it is being used to meet eligible care and support needs”. In this case horse-riding and other activities meet an identified eligible need. There was no good reason for the Council stopping the payments. It acted contrary to the Care Act.
33. After the direct payment ceased the Council failed to include the cost of community-based activities in a financial assessment completed in 2017. It allowed Miss Y a ‘standard’ DRE disregard of £25 per week because Mrs X did not provide information about additional DRE expenses. The Council cannot expect citizens to understand the process. This is particularly relevant in this case, because Miss Y was new to adult services. In any event the Council knew Miss Y attended community activities, so it did not need Mrs X to provide this information. The Council should have offset the costs as DRE.
34. I am concerned about the Council’s approach to DRE. It appears to apply a standard disregard, unless citizens provide additional information. Councils should always consider individual circumstances and consider everything a person has to buy or pay for because of their disability. In this case it did not do so. This is fault.
35. The Council says there has been no impact on Miss Y as all her needs are met by the Care Provider. This is not correct. The Care Provider does not cover the costs of all community-based activities such as horse-riding, Miss Y does. She should not have had to do so.

Agreed action

36. The Council will:

• provide Mrs X with a written apology for the failures identified in this statement, and pay her £250 for the time and trouble she has been put to pursuing this complaint with the Council, and the Ombudsman;
• develop a support plan for Miss Y setting out all her needs and how these will be met;
• undertake a fresh financial assessment of Miss Y and consider all DRE in accordance with statutory guidance;
• establish how much Miss Y has spent funding any activities identified as an eligible need since 2016, and reimburse her in full;
• establish if, and how much, Mrs X has contributed towards Miss Y’s activities identified as an eligible need and reimburse her in full.
• consider if other service users may be similarly affected, and take appropriate action;
• ensure officers undertaking financial assessments and decision-makers act in accordance with statutory guidance.

37. The recommendations relating directly to Miss Y, and Mrs X should be completed within one month of my final decision, and evidence provided to this office. Where this is not possible, the Council should provide me with an update on progress.
38. All other recommendations should be completed within three months, and evidence provided to this office.

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Final decision

39. I have found fault causing injustice. The above recommendations are a suitable way to settle the complaint.
40. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman