Summary: Mrs B complains about the amount of money the Council asks her husband to pay towards his care. We uphold the complaint, finding the Council has not properly assessed disability related expenses that Mr B might have. This causes uncertainty for Mr and Mrs B. We recommend the Council apologise, write off some charges incurred by Mr B and reassess his financial contribution following advice set out in this statement.

The complaint

1. I have called the complainant Mrs B. She complains on her own behalf and that of her husband Mr B. The Council has assessed that Mr B can receive a direct payment to pay for a personal assistant to help with his care needs. But he must make a financial contribution of around £24 per week. Mrs B complains this is unaffordable.
2. Mrs B says as a result the couple must either cancel the care package which Mr B needs or run up a debt they cannot pay. Either choice causes them distress.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. Before reaching this decision statement I considered:

• Mrs B’s complaint made in writing to the Ombudsman with any supporting information she provided including that gathered in a telephone conversation with her.
• Information provided by the Council in response to enquiries.
• Relevant law, guidance and Council policy.

7. I also sent both Mrs B and the Council a draft decision statement setting out my proposed findings. Both indicated they accepted these.

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What I found

The law and national guidance

8. 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)
9. 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 minimum income guarantee’). (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)
10. If a person incurs expenses directly related to any disability he or she has, the Council should also take that into account when assessing his or her finances. Government guidance says that such expenses can include costs for:

• specialist washing powders and laundry;
• additional costs of special dietary needs;
• additional costs of bedding, for example, because of incontinence;
• any heating costs above the average levels for the area and housing type;
• reasonable costs of basic garden maintenance, cleaning or domestic help if necessitated by the person’s disability and not met by social services;
• other transport costs necessitated by illness or disability, including costs of transport to day centres, over and above the mobility component of PIP (a personal independence payment) if in payment and available for these costs. In some cases, it may be reasonable for a council not to take account of claimed transport costs; if, for example, a suitable, cheaper form of transport, such as council-provided transport to day centres is available but has not been used.

11. The guidance also says it may be reasonable for a council not to allow for items where a reasonable alternative is available at lesser cost. For example, a council might adopt a policy not to allow for the private purchase cost of continence pads, where these are available from the NHS. (Care & Support Statutory Guidance Annex C)

Background to this complaint

12. Mrs B first complained to this office in February 2018. Her complaint followed the Council re-assessing a contribution it asked Mr B to pay towards his personal care. Mr B has various disabilities and the Council had assessed he could receive support from a personal assistant for 20 hours a week. It would make a ‘direct payment’ managed by Mrs B to pay for the personal assistant. It previously asked Mr B to pay a contribution to his care, but this was around £3 a week. In October 2017 the Council had asked Mr B to start paying £23 a week.
13. The increase in Mr B’s contribution resulted from the Council reassessing his contribution after he stopped receiving a high-rate Personal Independence Payment towards his care. This is a benefit paid by the Department of Work and Pensions. When the Council assesses what someone can pay towards their care it must compare their income with the minimum income guarantee (MIG). Each person’s MIG depends on their circumstances, taking account of matters such as their disability. Receiving a high-rate PIP implies a higher level of disability and so results in a higher MIG than someone who receives the standard-rate PIP for care. Mr B’s MIG had therefore dropped resulting in a different calculation of his contribution to care.
14. Our investigation of Mrs B’s complaint did not question the Council needing to re-assess Mr B’s contribution. But it did find fault in how the Council carried out the reassessment.

• It did not make clear if Mr B needed to pay rent and if so why the Council would not disregard this when assessing his contribution.
• It disregarded a payment Mr B made towards council tax but it was not clear why this was as it did not mention this in its policy.
• It did not disregard payments Mr B made towards utilities. We found its decision here confusing.
• It knew that Mrs B had debts but it was unclear how it considered those in its assessment.
• It had not considered waiving Mr B’s charge under its exceptional circumstances policy. Nor had it properly reviewed the contribution it asked Mr B to pay in line with its policy.

15. The Council agreed a series of actions to remedy the complaint. This included reviewing its policy guidance given to officers on carrying out financial assessments for those receiving care. It then promised to review Mr B’s contribution when that review completed. That review would address the matters listed in paragraph 14. It would also consider if Mr B had any disability related expenditure that it should disregard.
16. The Council’s revised policy for undertaking financial assessments says:

• That it will carry out individual assessments but will “consider implications” for any partner of the assessment. This is what Government guidance says it must do rather than carry out an assessment based on joint income.
• That it will disregard any rent payments not covered by housing benefit. It will disregard 50% of such payments if the assessment is for one member of a couple.
• That it will disregard council tax payments.
• That it will consider if someone has expenses on utilities “above the average levels for the area and housing type”.
• That it will disregard payments towards debts incurred before someone needed care and support. It will sometimes disregard debt repayments incurred later where there are “exceptional circumstances”.
• That it has a policy for reviewing assessments and considering complaints about them.
• That it has discretion to always waive charges in exceptional circumstances.

17. The policy also says the Council will consider if individuals have disability related expenses. It says, “where a disregard is relevant, evidence of actual expenditure will be requested. If receipts have not been kept the Council can request that this is done for future expenditure. It is legitimate that the Council can verify that items that have been claimed for have been purchased”. It also says: “If the individual fails to keep future receipts and there is doubt as to whether the expenditure was actually incurred it is reasonable for the Council not to include this in the assessment”

The reassessment of Mr B’s contribution

18. The Council completed its reassessment of Mr B’s contribution to his charges in December 2018. It found he should pay around £25 a week towards his care. It has provided copies of the paperwork accompanying that review. These detail Mr B receives income from a carer’s allowance, income support (a joint award with Mrs B so the Council counted 50%) and PIPs paid for both his care needs (at the standard rate) and mobility needs (high rate). Mr B uses his PIP payable for his mobility needs to pay for a car bought under the motability scheme.
19. In its assessment the Council disregarded all of Mr B’s PIP paid towards his mobility needs. It calculated the relevant MIG. The Council allowed some disability related expenditure for extra laundry and utility costs. It also disregarded Mr B’s payment towards council tax. The assessment found Mr B does not have to pay anything towards his rent.
20. The Council sent two letters to Mrs B in December 2018. First, advising of its decision and then expanding on the reasons for it. The first letter noted the couple had also provided a breakdown of their income and expenses to the Council. It noted evidence provided showing Mrs B has various personal credit debts included on that income and expenditure form. Also, that she had provided evidence of motoring expenses. Mrs B says the couple incur a high weekly bill for diesel as the only social activity Mr B takes part in is to visit family members around 20 miles away. Such visits also give Mrs B some respite as she will use the opportunity to spend time alone while other family members care for Mr B. They make this return journey around four times a week. Mrs B also listed amounts spent on window cleaning, gardening and domestic cleaning. The Council noted she had not provided receipts for those. It said Mrs B could ask for a review of its decision.
21. In the second letter the Council said “It was explored with the social worker if petrol, domestic and sanitary costs could be included as part of allowable disability related expense, but it was determined that these were not part of your husbands assessed needs and therefore no allowance was given in the financial assessment”.
22. Mrs B asked for a review. She said she could not provide receipts as she struggled to remember to keep them due to her own health issues. She said the Council had not taken proper account of the costs used to run a car.
23. That review did not complete until late June 2019, when the Council confirmed its decision that Mr B should pay around £25 a week towards his care. It noted that Mrs B said she could not provide receipts showing the couple’s food bills. It said: “in the absence of that information we are unable to evidence the completion of the income and expenditure statement and having considered our policy on waiving contributions there do not appear to be any extenuating circumstances in your case”. The Council said it would review its decision again if Mr and Mrs B could provide such evidence.
24. I asked the Council for more information about what happened between December 2018 and June 2019. It referred me to notes kept by its social work staff. These have few direct references to the financial assessment. There is a note made by the social worker in December 2018 saying that Mrs B should speak to district nurses around incontinence products for Mr B. Also, that “social care needs to be proportionate and would not pay fuel [for Mr B] to visit family four times a week”.
25. Many of the notes refer instead to the Council undertaking a reassessment of Mr B’s assessed needs. This completed in April 2019. I have not seen a copy of the assessment, but Mr B’s social worker recorded Mr B having social care needs in the areas of “managing medication, nutrition, personal hygiene, toileting, appropriately clothed, home safety, managing personal relationships and accessing community”. Mrs B says the assessment says that Mr B will maintain relationships and access the community by seeing his family members who he visits four times a week.
26. The notes record that for a time Mrs B cancelled direct payments. She did so because of worries about the cost of Mr B paying his personal contribution. But in May 2019 Mr and Mrs B asked for payments to start again. I understand these remain at the level agreed previously; i.e. to provide Mr B with 20 hours a week care from a personal assistant.
27. In February 2019 the Council agreed to waive charges for care Mr B continued to accrue until it completed a review of its assessment. But Mr B still owes around £1350 in unpaid charges.

My findings

28. I find no fault in the policy now used by the Council to assess the financial contributions to care that Mr B should pay. I find that it complies with Government guidance and offers mostly clear advice to officers and users of services on how the Council will decide what someone should pay towards their care.
29. I also find no reason to fault the basic calculation followed by the Council when it came to assess Mr B’s financial contribution. I have no evidence to suggest it made any mistakes in calculating his income or the relevant premiums in calculating his MIG. I also find the Council has correctly allowed an amount for Mr B’s contribution to council tax and it has established he does not have to pay towards rent.
30. I consider the issue at the crux of this complaint is whether the Council has properly assessed what disability related expenditure Mr B has. I note it has allowed for some extra laundry costs and utility expenses Mr B incurs. The Council has not explained how it compared Mr B’s utility costs to an average figure for the area and type of house. However, I have no grounds currently to say this part of its assessment is wrong.
31. I have focused therefore on those other disability related expenses Mr B might have. Dispute here focuses on those costs Mrs B states the couple have for diesel, incontinence products, gardening and cleaning. I note here Mrs B also has her own disability and the Council has not stated that it considers she can carry out tasks such as gardening and cleaning.
32. For the Council to decide if an expense is one it should disregard in a financial assessment as ‘disability related expenditure’ it needs to ask a series of questions.

• First, is the expense incurred because the person’s disability?
• Second, is the cost reasonably incurred? It is here the Council can consider whether there is a cheaper or alternative way to meet the need.
• Third, is there proof of the expense incurred which the Council may reasonably ask for.

33. If the answer to all three questions above is ‘yes’ then the Council should allow the expense.
34. I do not find the Council has set about asking or answering these questions in any systematic way. Its letters and discussions with Mrs B muddle these questions. At different points it has suggested the answer to each of the questions is a ‘no’. So, I have considered each in turn.
35. On the first question I note that in December 2017 the Council wrote to Mrs B and implied none of the expenses arose because of Mr B’s disability. It said he had no “assessed need” for them.
36. I consider that wrong. The social worker’s notes (and presumably their assessment) identifies Mr B has social care needs including support with personal hygiene, toileting, keeping his home clean and safe and in accessing the community. It does not automatically follow that Mr B has expenses the Council should disregard as disability related expenditure because it also needs to ask the other two questions set out above. But it cannot say he does not have assessed needs which might result in such expenses.
37. On the second question I find the Council has questioned if Mr B could have incontinence products provided by the NHS. I consider that a reasonable consideration as suggested in government guidance quoted in paragraph 11. But it has not set out in writing in any coherent way its thinking on this point; i.e. setting out what costs it understands Mr B incurs and what might be met by the NHS. For example, costs could include not just pads but also items such as replacement bedding or kylie sheets. Does it know what local NHS services will provide?
38. When it comes to Mr B’s motoring expenses the social work notes suggest it does not consider Mr B needs to visit his family four times a week. The notes imply the Council considers this excessive. This might be reasonable. But the Council has accepted Mr B has a need to access the community. It knows he spends all his PIP paid for mobility on a car under the motability scheme. It has not explained how else Mr B might access the community without incurring travel expenses. So, while it might think his family visits are excessive, the Council has failed to define what it thinks is reasonable instead. It has again failed to set out in writing a coherent position on this point.
39. On the third question, the Council implies it cannot allow expenses for cleaning and gardening without receipts. This is reasonable. Mrs B has shown that she can provide receipts for the couple’s diesel expenses. She also provides copies of utility bills and statements confirming her personal debts. I see no reason therefore why Mrs B cannot also provide evidence of the cleaning or gardening expenses the couple also incur.
40. Although again, I note a lack of clarity in the Council’s correspondence on this point. Its letter in June 2019 also refers to Mrs B not providing receipts for food expenses. But it has not explained why it might need those. If it considers the amount Mr and Mrs B say they spend on food excessive it must explain why. I also note here the income and expense form used by the Council does not include any separate declaration of money spent on toiletries or everyday household items. I assume the amount for food is therefore likely to also include expense on these items included in the weekly shopping bill.
41. I also note the Council has failed to offer clarity on how it regards the debt repayments Mrs B has. It has details of those but there is no record of it finding out when Mrs B incurred these or what for. The implication is the Council accepts the payments to service these debts are part of the couple’s weekly expenses. So, they are no longer an issue when assessing Mr B’s financial contribution. But given the focus on this issue during our earlier investigation it is disappointing the Council has not clarified its position.
42. When I take account of all the matters listed in paragraphs 35 to 41 I must reach a finding a fault. The Council has not demonstrated that it has made a sound and justifiable decision on the financial contribution it wants Mr B to make towards his care. It has not properly considered if it should allow further disability related expenses in its calculation.
43. This causes injustice to Mr and Mrs B. I cannot say the Council’s assessment is wrong. But I consider there remains uncertainty about the amount the Council currently asks Mr B to pay towards his care. We consider this a form of distress. I make recommendations below for action I want the Council to take to remedy this. In making those proposals I have taken account that Mrs B could have done more to supply information needed for the assessment as explained in paragraph 39 above.

Recommended action

44. To remedy the injustice set out at paragraph 43 above the Council has agreed that within 20 working days of this decision it will apologise to Mr and Mrs B, accepting the findings of this investigation.
45. The Council also agrees that within three months of this decision it will complete a further re-assessment Mr B’s financial contribution. As part of that it will:
1. Write first to Mr and Mrs B and set out any information it wants them to provide to inform that assessment taking account of my analysis above. For example, if it wants more details on the expenses Mr B incurs in meeting incontinence needs or if it wants receipts to make clear what is needed and why.
2. Allow Mr and Mrs B 20 working days to reply and provide that information.
3. When it makes its decision the Council must take account of the analysis I have provided above and clearly explain its reasoning if it does not accept expenditure declared by Mr and Mrs B on diesel, incontinence needs, cleaning and gardening is disability related expenditure. It should also explain how it arrives at an ‘average’ cost for utility expenses. Finally, it should be clear on how it regards the expenses declared by Mr and Mrs B on debt repayments.
4. Consider if there are any exceptional circumstances justifying a lesser ongoing contribution. This would be appropriate if the decision at c) still results in the Council asking Mr B for a financial contribution towards his care.
46. The Council will agree to waive any further charges Mr B has incurred since June 2019 until the review agreed at 45 has completed or for three months after this decision, whichever date falls first.
47. Also, within three months of this decision the Council has agreed to consider what lessons it can learn from this complaint. It will consider how it can improve the quality of the decisions it takes around disability related expenditure and the communication of those. It will write to us setting out what action it proposes or has taken to address our concerns in this area. For example, if it has decided to offer further training or briefing to staff, or issue supplementary guidance.

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Final decision

48. For reasons set out above I uphold this complaint finding fault by the Council causing an injustice to the complainants. The Council has agreed action to remedy that injustice that I consider will provide a fair outcome to the complaint. Consequently, I can complete my investigation satisfied with its actions..

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Investigator's decision on behalf of the Ombudsman