Summary: The complainant says the Council has not properly recognised his need to attend classes in a day centre and include the costs in his financial assessment and payments. Instead the Council says he must claim for those costs each year separately as disability related expense. The complainant says this causes inconvenience and distress. The Council says it reflects the choices available to the complainant whereas the daily charge for attending the day centre does not alter. It is willing to review the complainant’s financial assessment if he can continue to show these expenses are disability related. The Ombudsman finds the Council acted without fault in reaching this view.

The complaint

1. The complainant whom I shall refer to as Mr X, says the Council when assessing his social care needs and care plan failed to:
• Properly recognise the care need and disability related expenses Mr X incurs when attending a day centre to learn life skills and improve his health;
• Show what change had occurred in rules, care or health and development needs since earlier care plans that recognised the provision Mr X needed as a disability related expense.
2. Mr X says the classes undertaken help him with training for life skills, health improvement and developing his independence. Socialisation at the day centre enables him to learn cooking and shopping skills which he will need to develop his independence. Paying for these classes without the Council paying would reduce the money Mr X has for respite and spending money to help him socialise.

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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 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

5. In considering this complaint I have:
• Spoken with Mr X’s representative and read the information presented with his complaint;
• Put enquiries to the Council and reviewed its response;
• Researched relevant law, guidance and policy;
• Shared with Mr X and the Council my draft decision and reflected on any comments received.

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What I found

The law, guidance and Council policy

6. Sections 9 and 10 of the Care Act 2014 say local authorities must carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
7. The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Local authorities should tell the individual when their assessment will take place and keep the person informed throughout the assessment.
8. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the local authority must involve any carer the adult has. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
9. Section 27 of the Care Act 2014 gives an expectation that local authorities should conduct a review of a care and support plan at least every 12 months. The authority should consider a light touch review six to eight weeks after agreement and signing off the plan and personal budget. It should carry out the review as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. As well as the duty to keep plans under review generally, the Act puts a duty on the local authority to conduct a review if the adult or a person acting on the adult’s behalf asks for one.
10. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
11. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25%. The Council can take a person’s capital and savings into account subject to certain conditions. If a person incurs expenses directly related to any disability he or she has, the Council should take that into account when assessing his or her finances. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)
12. The notes attached to the Council’s Financial Declaration form sent to those receiving social care services outlines the Council’s policy. It lists fifteen examples of what it considers extra disability related expenditure. This includes ‘privately arranged care’. The Council defines these as “…money which has been spent specifically as a result of your illness or disability to maintain independence…”. The notes say that under the Council’s charging policy the Council may only consider these expenses if the claimant provides evidence to show they incurred them because of their disability.

What happened

13. Mr X has learning difficulties and lives with his family. Mr X needs support with all daily living skills. To meet Mr X’s need to reduce the risk of isolation and learn life skills Mr X attends a day centre (I shall call the Centre) five days a week.
14. The Council assesses Mr X’s needs and agrees a care and support plan with him and his family. Mr X funds the provision he needs through direct payments he receives from the Council. The Council calculates the payments following a financial assessment which also decides what, if any, contribution to the costs of his care Mr X should make.
15. The Centre provides a safe environment for Mr X to socialise. It also offers classes in cookery and life skills. The classes aim to develop the participants independent living skills.
16. The Centre charges a fee for guests to attend for the day. It charges extra fees for classes and group work undertaken at the centre such as bakery classes or creative classes. Guests can choose which class or group will best help them learn skills and help them socialise.
17. In 2017 the Council assessed Mr X’s needs and issued a care and support plan. The Council carried out a financial assessment to decide Mr X’s contribution to the costs of his care and support. Mr X challenged the assessment because it did not include the costs of classes or group work undertaken within the Centre only the cost of attending it. Instead the Council listed the costs of classes and groups within the Centre as ‘Privately Arranged Care’. The Council said that if Mr X could show the charge was a disability related expense it would review the assessment. Mr X provided the necessary evidence to support his claim. The Council reviewed the assessment and approved these expenses as disability related. Mr X believes the Council should automatically include the costs as part of the costs of attending the Day Centre.
18. In 2018 the Council again included in its assessment the costs of attending the Centre but not the fees for the classes or groups Mr X regularly attended while at the Centre. The Care and Support plan says in the Pen Picture section Mr X may “choose…from options available at the [Centre]”. This shows Mr X may change the class or group with which he engages and for which he may pay a charge. Therefore, the Council believes these expenses are different from the charges for daily attendance. It may change depending on Mr X’s choices and so needs separate consideration.
19. Although Mr X showed these classes met the test for disability related expenses in his 2017 assessment the Council says it cannot simply roll forward those expenses into the next assessment. The Council needs a further claim with proof to show these expenses meet the threshold of disability related expenses. The Council says it told Mr X’s financial representative by telephone that Mr X must support any further claims for disability related expenses by proof.
20. The Council says where it has evidence of classes or group work which it cannot decide is a disability related expense it will seek guidance from the officer who undertook the care assessment. Then, if satisfied it is a disability related expense, the Council will include it in Mr X’s expenses. The Council says Mr X did not detail these expenses on the assessment form completed for Mr X. However, Mr X believed that given the Council approved them the year before he did not need to declare them separately this time.
21. The Council says it will review its assessment of disability related expenses. However, to do that it needs Mr X to provide proof the expenses incurred in the Centre arise from his disability. Mr X says this puts him to avoidable inconvenience and expense in claiming the expenses and waiting for a decision.
22. In commenting on my draft decision, the Council says that its letters to claimants now say that claims need to claim all disability related expenses each year. The Council uses the following wording “A review of your financial assessment will be undertaken on an annual basis.”

Analysis – was there fault leading to injustice?

23. My role is to consider how the Council properly assessed Mr X’s needs and finances. It is not to decide whether an expense is a disability related expense.
24. The Council should follow up any information given by telephone with a letter confirming what it has said. It did not do that in March 2017 when asked about the expenses. It should and it should have confirmed the Council expected Mr X to claim for similar expenses each year.
25. The Centre is part of Mr X’s daily care routine. The Care and Support Plan says Mr X attends to receive care, give respite to his parents and to learn skills that help him improve his life skills. Mr X only needs those he argues because of his disabilities. In the year before the Council approved the fees for the same classes and groups as disability related expenses. Therefore, it would need a good reason for not approving them as disability related in the following years.
26. Mr X argues attending the Centre does not on its own meet his disability needs or the aims of his care and support plan. Mr X needs to attend classes and groups, for which the Centre makes a charge, to increase socialisation and learn life skills. Mr X cannot see why therefore, the Council does not accept these extra charges as part of the service he needs to meet the care and support plan. It causes him distress having to provide proof the costs arise from his disability. Mr X fears the Council may refuse to meet these costs leaving him with nothing to do at the Centre. Mr X believes that would harm his well-being.
27. The Council is willing to review the assessment on production of evidence showing the expenses arise from Mr X’s disability. With the assessments showing no change in Mr X’s needs and ways of meeting them, I understand Mr X’s concerns and distress. Making applications to cover the costs of these classes and groups means he may incur expense while waiting for approval. However, the Council has explained why it believes it is following good accounting practice by treating the expenses as separate from the cost of attending the Centre. Therefore, I find the Council acted without fault in deciding Mr X should make these claims.
28. To learn from the complaint the Council may wish to consider how and when it tells people it is assessing what they need to do to claim these extra expenses. This may avoid there being a period where people in Mr X’s position pay out for services that the Council later refunds as disability related expenses. In commenting on my draft decision, the Council confirmed the several ways in which it shares this information.

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Final decision

29. In completing my investigation, I find the Council acted without fault.

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Investigator's decision on behalf of the Ombudsman