Summary: Mrs X complains on behalf of her daughter. She says that the Council has failed to take all her Disability Related Expenditure into account, as part of her financial assessment. The Ombudsman has found no fault by the Council.

The complaint

1. Mrs X complains on behalf of her daughter (Miss Y). She says that the Council increased her daughter’s contribution towards her care from £0 to £31.23 per week and has failed to consider the following expenses as disability related expenses:

• Therapy dog;
• Mobile phone and
• Swimming

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
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 my investigation I discussed the complaint with Mrs X and considered the information she provided. I made enquires of the Council and considered its response.
5. I provided Mrs X and the Council with a copy of my draft decision and invited their comments. I considered the comments I received.

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What I found

6. Miss Y is aged 30. She has a moderate learning disability, autism and mild cerebral palsy and hypermobility. She has Trendelenburg Lurch which affects her mobility. She also suffers with anxiety and short-term memory problems and sensory dysfunction. Miss Y has had a hip reconstruction and a full hip replacement.
7. Mrs X complains about the contribution Miss Y has to make towards her care and support services. She says the Council has failed to take into account specific expenditure required to meet her needs. Specifically, Mrs X complains that the Council failed to consider the following as disability related expenses:

• Therapy dog;
• Mobile phone and
• Swimming

8. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. Where disability related benefits are taken into account as income a council should make an assessment and allow the person to keep enough benefit to pay for the necessary disability related expenditure (DRE) that they are incurring to meet any needs that are not being met by the Council. This means that if a person’s DRE increases, the contribution they pay towards their care package decreases.
9. A DRE is defined by the Department of Health as “items where the user has little or no choice other than to incur the expenditure in order to maintain independence or quality of life”.
10. 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;
• 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.

11. The Council’s recent policy “Adult Social Care Contributions Practice and Guidance” states that “The Council will not normally make allowances for what can be considered everyday living expenses or a lifestyle choice when calculating an individualised DRE in an appeal. Such costs are provided for in the national minimum income Guarantee (MIG) allowances”. Pets and mobile phones are listed as an everyday expense.

What happened in this case

12. In September 2018 the Council completed a financial assessment for Miss Y. The assessment recorded Miss Y’s benefits as income which included employment and support allowance and personal independence payment. The financial assessment also detailed Miss Y’s DRE’s. I note that in a previous financial assessment Miss Y was receiving incapacity benefit and disability living allowance.
13. Miss Y was assessed as being able to contribute £31.23 per week towards her care.
14. Mrs X complained to the Council. She said that Miss Y’s dog was a therapy dog and her support plan included attending pet therapy sessions three times per week. She said that the dog played an important part in Miss Y’s well-being. Mrs X said that Miss Y required a mobile phone to manage her diabetes and anxiety. She also said that Miss Y went swimming to manage her health needs. Mrs X asked the Council to consider these expenses as DRE.
15. The Council considered Miss Y’s therapy dog and the legislation for assistance dogs. It took the view that Miss Y’s dog was not registered nor provided as an assistance dog or a therapy dog. Mrs X confirmed this. The Council acknowledged that Miss Y carried out volunteer work in the community with the dog and took him to charities to support others. It also noted that Miss Y is supported by a personal assistance to undertake these activities. The Council concluded that the dog was important and valuable to Miss Y as a pet but should not be disregarded.
16. The Council considered Miss Y’s requirement for a mobile phone. Mrs X said that her daughter required a mobile phone due to her diabetes and anxiety. The Council explained that Miss Y is supported by a personal assistant to access the community. It said that was the responsibility of the personal assistant to manage her anxieties. It said that support had been tailored to Miss Y’s interests and volunteer work, which caused her the least amount of stress and anxiety. The Council said the only time Miss Y is alone, she walks past her sisters and aunts house. The Council concluded that a mobile phone is a core part to most people’s everyday lives and that this was no different for Miss Y and should not be disregarded.
17. The Council considered Mrs X’s request that swimming expenses should be disregarded because it helped Miss Y manage her health condition. The Council said that it was for the Clinical Commissioning Group (CCG) to decide if swimming was a health need and then to support this need if they deemed it appropriate.

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Analysis

18. 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 the 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 councils decision-making process is in keeping with relevant guidance and legislation.
19. I appreciate that it must have been a shock to Miss Y and Mrs X to be told that Miss Y would be contributing towards her care. However, I have found no fault in the way the Council assessed Miss Y’s finances. The Council was entitled to recalculate Miss Y’s contribution in line with an increase in her benefits. In this case there was an increase in Miss Y’s employment and support allowance and personal independence payment. The increase in benefit would mean that Miss Y’s contribution would also increase, because her income had gone up.
20. The Council has some discretion about what it considers as DRE. The Ombudsman would generally expect the Council to consider using its discretion to disregard expenditure, where the person has provided clear evidence that it has a direct link to their disability.
21. The financial assessment shows that the Council has allowed £30.07 as disability related expenditure. The Council has demonstrated that it has a good understanding of Miss Y’s needs and the support plan reflects this. The Council has considered Mrs X’s comments and concluded that the dog and mobile phone have no direct link to Miss Y’s disability and should not be disregarded. The Council considered these items in accordance with guidance and policy and therefore, I cannot find fault in that way it reached its decision.
22. Miss Y goes swimming to manage a health condition and therefore the Council decided that the CCG should carry out an assessment and support the cost if deemed appropriate. I am satisfied with this.
23. The Council has explained to Mrs X how it considered her complaint and why it has not accepted the items as DRE. The Council considered the items in accordance with guidance and policy and therefore, I cannot find fault in the way it reached its decision.

Final decision

24. I appreciate that Mrs X will be disappointed, but I do not find any evidence of fault in the way the Council reached its decision. I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman