Summary: Mrs C complained about the way the Council assessed her son’s disability related expenses. Based on the evidence seen, the Ombudsman finds some fault in the way the Council reached its decision and how it dealt with Mrs C’s complaint about it. To remedy the uncertainty this has caused Mrs C and her son, the Council has agreed to review the financial assessment, explain the outcome in writing and issue a formal apology.

The complaint

1. Mrs C complains about the way the Council calculated her son’s (Mr D) contribution towards his care and support. She says the Council failed to consider all his disability related expenditure. She also complains about the way the council handled her complaint.

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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. As part of the investigation I have:

• considered the complaint and the information provided by Mrs C;
• discussed the complaint with Mrs C on the telephone;
• made enquiries of the Council and considered the comments and documents it provided;
• considered The Care Act 2014 and The Care and Support Statutory Guidance, issued by the Department of health and Social Care.

5. I provided Mrs C and the Council with a copy of my draft decision and invited their comments. I considered all the comments I received.

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What I found

6. Mr D lives alone and is supported by his mother, Mrs C. He has a diagnosis of Aphasia, speech and language disability and learning difficulties.
7. Mrs C complains about the contribution her son has to make toward his care and support services. She says the Council has failed to act in accordance with The Care Act 2014 in that it has refused to consider all his disability related expenditure (DRE).
8. Specifically, Mrs C complains that the Council has failed to consider the following as disability related expenses:

• Utility bills
• Car
• Petrol costs

9. The Council has a duty to arrange care and support for people with eligible needs. It must carry out a financial assessment of what the person can afford to pay, and it must provide a written record of the assessment.
10. Where disability related benefits are taken into account as income the Council should make an assessment and allow the person to keep enough benefit to pay for necessary DRE that they are incurring to meet any care needs that are not being met by the Council. This means if a persons’ DRE increases, the contribution they have to pay towards their care decreases.
11. A DRE is defined by the Department of Health as “items where the user has little or no choice than to incur the expenditure in order to maintain independence or quality of life”.
12. The Guidance says DRE should be considered when:

• The extra cost is needed to meet a person’s specific needs due to a medical condition or disability, as identified in the council’s care and support assessment; and
• The cost is reasonable and can be verified; and
• It is not reasonable for lower cost or free alternative item or service to be used. If a lower cost alternative could have been used the expense considered will be capped at the lower cost of the item.

13. The Council must ensure a person living in their own home has enough money to meet their daily living costs, such as rent, food and utilities. The regulations say a person must be left with a minimum income guarantee (MIG). For Mr D the MIG is £131.75. The MIG is the amount needed after housing costs and any DRE.

What happened in this case

14. In August 2016 the Council reviewed its charging practices for adult social care to align them with The Care Act 2014. As a result the Council arranged to carry out a review of the assessed contribution for all customers who were receiving a chargeable service from the Council.
15. The Council sent a letter to Mrs C on 24 October 2017 and advised that a financial assessment would be completed at Mr D’s home on 21 November 2017. The Council enclosed information about the assessment and guidance on DRE.
16. The Council completed a financial assessment on 21 November 2017. It recorded Mr D’s income and detailed the expenses he incurred. The Council said that there was no evidence in relation to any DRE that Mrs C wished to have considered and therefore in accordance with policy and legislation no allowance was made for this. Mr D was assessed as being able to contribute £88:00 per week towards his care, with effect from 21 November 2017. The Council informed Mrs C in writing the next day.
17. In December 2017 Mrs C provided the Council with evidence of domestic help, gardening and internet access. The Council included domestic help and gardening as DRE on the basis that it helped Mr D maintain a safe a clean environment. It recognised that Mr D was at risk of social isolation and also included internet access as a DRE. The Council revised the financial assessment and the assessed weekly charge was reduced to £61.09. the Council backdated this to November 2017 to ensure that Mr D did not experience any financial detriment. The Council listed the following expensed as DRE:

• Rent £22.96
• Domestic Help £6.00
• Gardening £11.00
• Internet access £11:85

18. In response to my enquiries the Council told me that Mrs C had asked it to consider the potential future cost of Royal National Institute for Deaf people (RNID) carer’s travel expenses. The Council refused this on the basis that it was not a current or verifiable cost. The Council told Mrs C “if this situation changes, [Mr D] will be able to request a review upon submission of evidence of the expense”. In response to my enquiries the Council explained that it has not received any further information regarding this.
19. In June 2018, a complaint was made on behalf of Mrs C and Mr D to a councillor. The councillor responded to the complaint and explained the assessment process that determined Mr D’s contribution. Mrs C was advised that she could contact the Council to request a carers assessment. The letter also stated that if Mrs C believed she was not receiving her full welfare benefit entitlement she could speak to a finance officer. Contact details for the finance officer were provided.
20. In July 2018, the Council received a request for an appeal of the financial assessment. The appeal letter provided background information about Mr D’s medical conditions and disabilities and how they impacted his daily life. Specifically, Mrs C said the Council had failed to consider the following costs as DRE:

• Costs of running a car;
• Travel costs;
• Parking charges;
• Badminton;
• Swimming;
• Cinema tickets for Mr D and his carer;
• Utility bills;
• Laundry and personal care;
• TV licence;
• Maintenance and repair costs;
• Annual green bin charge;
• Dental care;

21. Mrs C explained that these expenses were essential to enable to Mr D to live independently and vital for his health and well-being. The total cost of these expenses was £183.20 per week. The appeal letter also stated that £6.00 for domestic help did not cover one hour of work on the national minimum wage. Furthermore, the letter explained in detail the support Mrs C provided for her son.
22. The Council wrote to Mrs C on 7 September 2018. It said it had considered the request for an appeal against the assessed charge. The Council said Mrs C had explained the difficulties and challenges that Mr D faced but these were not directly relevant to the financial assessment. It explained that the cost of domestic help of £6.00 reflected the amount that was evidenced to the assessing officer at the time of the assessment. The Council said if the cost was now higher, Mr D could provide further evidence for consideration.
23. The Council said that “essential basic domestic expenses” that Mrs C referred to were day to day costs which would be covered out of the MIG. This included the charge for the green bin as this was a household expense and not a cost directly related to Mr D’s disabilities. It said that the breakdown of expenses provided by Mrs C would be expected to be paid out of the MIG except for rent payments and costs of the Saturday carer. The Council advised Mrs C again that she could contact them to ensure she was receiving her full benefit entitlement and request a carers’ assessment.
24. The Council explained that it had completed the assessment in accordance with its own policies and procedures and within the guidelines of The Care Act 2014. It concluded that there had been “no verification or evidence provided with which to review the original assessment”. It said it would consider any further expenses upon provision of evidence.
25. The Council said that if Mrs C was dissatisfied, she could contact the Ombudsman. However, in October 2018 the Council told Mrs C that she needed to raise a formal complaint, which she did in November 2018. The Council responded to the complaint on 17 December 2018 and advised Mrs C that if she remained dissatisfied, she could escalate her complaint to Stage two, which she did. The Council wrote to Mrs C on 4 January 2019 and asked her to provide a summary of points for the stage two investigation. One week later she received a further letter from the Council stating that the previous letter had been sent in error and she should contact the Ombudsman.

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Analysis

26. It is not for the Ombudsman to say whether the Council should or should not include the items outlined in paragraph 7 as DRE. Rather, he looks at whether there is fault by a council in the way it has made a decision. As part of this consideration, the Ombudsman will consider whether a council’s decision-making process is in keeping with relevant guidance and legislation.
27. I appreciate that it must have been a shock to Mrs C and Mr D to be told about the client contribution of £61.09 per week. However, the Council is entitled to charge for the services it provides. I have found no fault in the way it assessed Mr D’s finances. In its stage one response the Council explained that it would only consider physical activities if they were required as physical therapy in relation to a person’s disability and it would seek confirmation of this from a medical professional. It also asked Mrs C to provide receipts covering a three-month period for cinema support provided to enable it to consider this as a DRE. I am satisfied with this.
28. The Council told Mrs C that the breakdown of expenses provided by Mrs C would be expected to be paid out of the MIG except for rent payments and costs of the Saturday carer. I am satisfied with this. However, I have seen no evidence that the Council specifically considered the costs of running a car as a DRE. This is fault. Because of this Mrs C has been caused uncertainty as she cannot know if the Council has properly considered her sons individual needs and she cannot know if this may have influenced a better outcome in the consideration of his DRE.
29. In response to my enquiries the Council said that it considered the general cost associated with running a car as within the day to day expenses covered by MIG. However, it failed to explain this to Mrs C. The Council also said that “In the event that there are additional costs (petrol for example) which meet [The Care Act] criteria the Local Authority would give them due consideration with the appropriate evidence”. However, it failed to specifically state this in its correspondence with Mrs C.
30. In response to my enquiries the Council has acknowledged there was fault in the way it handled Mrs C’s complaint and has agreed to apologise for this. The Council also said “the local authority would like to take this opportunity to undertake a further review of the financial assessment of [Mr D] in order to potentially resolve the current concerns and/or provide a full explanation. The local authority would like to reiterate the offer for [Mrs C] to undergo a carer assessment”. I am satisfied with the Council’s response as this is the best outcome, we could achieve for Mr D and Mrs C.

Agreed action

31. The Council has agreed to my recommendations and within four weeks of the final decision it will:
1. Apologise to Mrs C for the way it handled her complaint;
2. Contact Mrs C and undertake a further review of the financial assessment of Mr D and inform her of its decision in writing, with a clear explanation of how it considered Mr D’s individual circumstances and how it reached its decision.

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Final decision

32. For the reasons set out above there was fault causing injustice to Mrs C and Mr D. The Council has agreed to my recommendations and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman