Summary: The Council did not respond properly to Mr Y’s complaint about the care plan of his son, Mr X. It has not reinstated Mr X’s disability-related expenses to the relevant date. It now apologises for its shortcomings and agrees to reinstate expenses as appropriate.

The complaint

1. Mr Y (as I shall call the complainant) complains on behalf of his disabled adult son Mr X about the way the Council has assessed Mr X’s finances, particularly his disability-related expenses, has not completed an agreed care plan for over a year and has failed to apply the correct processes.

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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. 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

3. I considered the information provided by the Council and Mr Y. I spoke to Mr Y. I made additional enquiries of the Council. Both parties had an opportunity to comment on an earlier draft of this statement before I reached a final decision.

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What I found

Relevant law and guidance

4. 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)
5. 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)
6. The Care and Support (Charging and Assessment of Resources) Regulations 2014 (7.8) say “Where a local authority provides non-care related support for the adult concerned the minimum income guaranteed amount in relation to that adult is the amount calculated …..less an amount equal to the cost the local authority incurs in providing that non-care related support for the adult concerned.”

What happened

7. Mr X is an adult with mild learning disabilities, some mental health problems and epilepsy. He lives alone with support from carers and with night-time support of 63 hours a week (for which the Council took over responsibility from the Independent Living Fund in 2015). He also has support from his parents Mr and Mrs Y, and sometimes spends weekend with them. He used to work part-time but after a series of UTIs in 2017, he was unable to continue.
8. At a review of Mr X’s needs in September 2018, his social worker suggested assistive technology (‘’just checking’) might be used todetermine Mr X’s need for a night-time carer. Mr and Mrs Y had previously been concerned about a likely increase in seizures due to Mr X’s epilepsy (which was triggered by anxiety) if the night-time care was reduced. The Council said however that Mr X had not suffered a seizure for some years. It proposed a trial of the technology for a period of two weeks to gather data which could be analysed and taken into account along with the views of Mr X and his parents. Mr Y says he has never had a satisfactory explanation from the Council about how the data collected in the ’just checking’ system would be analysed.
9. During the review Mr Y says he gave Mr X’s financial details to the assessor who said there would be a 20% increase in Mr X’s contribution on the basis of the figures. Mr Y says the meeting broke up abruptly and it was only afterwards he realized no-one had discussed Mr X’s disability-related expenses (DREs)– his mobile phone, chiropody, laundry and expenditure on additional clothing. He says he contacted the Council and was told it was the role of the social worker to discuss any DREs. He says he spoke to the social worker who said he was unaware of the process. The social work case recording of the meeting however shows there was discussion about Mr X’s DREs.
10. The support plan which the Council drew up suggested 10 hours a week social activities including sports, bingo, cinema etc as Mr X chose.
11. Shortly afterwards a new social worker was allocated for Mr X. When Mr Y asked her about the expenses he was asked to submit all receipts for the last 11 months. He says he did not hear anymore from the Council about the expenses until February 2019 when all were rejected.
12. Mr Y complained to the Council. He said the care plan which the Council had produced following the inability of Mr X to return to work after September 2017 was still not agreed as it did not contain accurate costings about social activities, the cost of which would take Mr X below the Minimum Income Guarantee (MIG). He said the Council was seeking to impose recording equipment without explanation of how the data collected would be analysed. He said the social worker who had conducted the review was unaware of the change in the Council’s processes (which took place in September 2017) which placed the onus for identifying DREs on the social worker, not the client or their representative. He said the Council had then rejected the DREs without evidence.
13. In respect of the rejected claim for phone costs, Mr Y said Mr X was vulnerable and should not be isolated without means of communication, so the line rental cost was linked directly to his disability.
14. In respect of the claim for chiropody costs, Mr Y said a need had been identified for ongoing chiropody following Mr X suffering an ingrowing toenail and the cost had been recognised as a DRE for some years. He said nothing had changed except the decision of the Council no longer to allow it.
15. In respect of the claim for laundry, Mr Y said Mr X frequently soiled his clothes with food due to his disability. He said the Council’s suggestion that Mr X wear a bib instead was demeaning.
16. Mr Y conceded that the claim for additional clothing and bedding expenses was not as easy to evidence as it arose from the time when Mr Y suffered multiple UTIs.
17. The Council replied that chiropody was a health-related need and so could not be regarded as a DRE, but it said it had contacted Mr X’s GP for a referral to a chiropody clinic. It said it had previously allowed DREs for clothing and bedding when Mr X was ill with UTIs but that was a one-off expense.
18. Mr Y complained to the Ombudsman. He says even where the Council has agreed DREs it has not backdated them to the time at which they were suspended and so Mr X has incurred unnecessary additional expenditure.
19. The Council said it should have written again to Mr Y to address his outstanding concerns and apologised it had not done so. It said the test which must be applied when considering a claim for DRE has three components:

Is the expenditure directly linked to the Service User's disability.

Is the expenditure necessary?

Is the allowance of that expenditure as DRE reasonable?

20. The Council says, “The need for a mobile phone does not arise as a direct result of a disability which (Mr X) experiences, and the use of that mobile phone is not strictly limited to use in the event of an emergency”. For that reason it does not agree it was a DRE. It says during the time Mr X was ill the test had been met and it had agreed during that time to regard the additional bedding and soiled clothing as a DRE but that was no longer the case. It agrees the claim for laundry is directly linked to the disability. It also agrees the claim for chiropody costs although it says its records show it has not previously provided a DRE for chiropody.
21. The Council has not altered the night-time support for Mr X but says it remains committed to improving his independence and explaining the process of collecting and using data from the assistive technology to Mr Y.
22. In respect of Mr X’s care plan, the Council says the activities which Mr Y want to be included in the care plan are considered by the Council to be non-care related support as they are recreational activities. It says for this reason it is entitled to adjust the MIG in accordance with the regulations. (Mr Y says these activities were discussed and agreed at Mr X’s review.)
23. The Council says “as these sessions are optional social activities these would not be considered as part of a DRE.  Such activities would expected to be funded by the adult from their disposal income in the same way for example cinema tickets would be.  If there was a specific medical/physio/therapeutic need/benefit in attending such activities, this would be considered a health need and the adult would be encouraged to approach their GP/CCG for a personal health budget”.
24. Mr Y says the Council has included the costs for the care support but not the cost of the activity itself. He says “the additional cost to (Mr X) is an average of £35.58 activity cost plus £36:40 travel, taking his income to …well below the MIG.” Mr Y says it cannot be right that the Council includes activities on Mr X’s care plan which he then has to fund personally.

Analysis

25. The Council applied the tests of the DRE to Mr X’s circumstances and in the end agreed it on two counts. Mr Y’s frustration that the Council will not backdate DREs which he says have previously been granted is understandable.
26. It is not fault on the part of the Council not to consider social activities (even where mentioned in a care plan) as a DRE for the reasons it explains. That approach is in line with the regulations (see para 6 above).
27. It is not fault for the Council to consider collecting data from a trial of monitoring equipment to use alongside the views of Mr X and his parents and support carers to reach a view on how he might achieve more night-time independence.
28. It was fault (as the Council acknowledged) for it not to respond in full to Mr Y’s complaint.

Agreed action

29. Within one month of my final decision the Council will:

• Apologise to Mr Y for its failure to respond fully to his complaint;
• Consider the receipts Mr Y presents for chiropody expenses;
• Consider backdating Mr Y’s laundry costs to cover the period for which this has not been provided.

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Final decision

30. There was some fault by the Council which caused injustice. That will be remedied by the recommendations in paragraph 29.

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Investigator's decision on behalf of the Ombudsman