Summary: Mrs X complains the Council failed to properly consider her request for items of expenditure for her daughter Ms Y to be considered as Disability Related Expenditure. The Ombudsman has found no evidence of fault in the way the Council considered these matters.

The complaint

1. The complainant whom I shall refer to as Mrs X complains for her adult daughter Ms Y, the Council failed to properly consider her request for items of expenditure to be included as Disability Related Expenditure (DRE). This has caused financial hardship and distress to Mrs X and Ms Y.

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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. I have read the papers submitted by Mrs X and discussed the complaint with her. I considered the Council’s comments about the complaint and the supporting documents it provided. I have explained my draft decision to Mrs X and the Council and considered the comments received.

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What I found

Relevant legislation

Care and support statutory guidance

5. The Guidance document sets out how councils meet the terms of the Care Act 2014. Section 14 says councils can charge for care and support, except where they are required to provide it free of charge.
6. The Guidance says a person should not have to pay for care and support out of their capital if they have less than £14,250. It also says councils should disregard any DLA mobility component a person receives when assessing their income.
7. Certain items of expenditure can be deducted from a person’s income before the council decides whether a person can afford to contribute to their social care costs called DRE. Councils must take DRE into account when assessing a person’s finances. The financial assessment should set out exactly what the Council considers to be DRE.
8. If a Council takes a disability benefit into account, they must also assess disability-related expenditure in a financial assessment. This is to meet any disability-related needs not being met by them.
9. The Guidance says Councils should not be inflexible and should always consider individual circumstances. Councils should consider everything a person has to buy or pay for because of their disability. Councils should not adopt a blanket policy.
10. The Statutory Guidance states that “what is disability-related expenditure should not be limited to what is necessary for care and support”.
11. After paying the assessed charge, a person’s weekly income should not reduce below a minimum income level, called the Minimum Income Guarantee (MIG). Councils must consider how to protect a person’s weekly income using the MIG. Guidance states the purpose of the MIG is to promote independence and social inclusion and ensure a person has sufficient funds to meet basic needs.
12. Applicants can use the Financial Assessment Appeals process if they disagree with the outcome of a financial assessment. There are two appeal stages to the process. Stage one appeals are dealt with by a member of the team not involved in the assessment. If the applicant remains unhappy with the outcome of the stage one appeal, they can go to Stage two. This is dealt with by a senior team member. Applicants can then complain to the Ombudsman if they remain unhappy with the outcome of their appeals and consider there was fault in the way the Council carried out the financial assessment.

Background

13. Ms Y is an adult and lives at home with her mother, Mrs X. Ms Y has Downs Syndrome, profound learning disabilities and autism, which is described as ‘severe’. Mrs X provides a significant amount of support to Ms Y.
14. Ms Y attends a specialist day service five days a week. She also receives outreach services on a 1-1 basis from a specialised service in the community and at home. The community activities include attending social groups and a weekly visit to a fast food restaurant. Activities within the home are more craft based and include nail painting, crafts, puzzles, sewing, and cards and collages.
15. Ms Y did not pay a contribution towards her care until June 2016. Following changes implemented under the Care Act 2014 the Council completed a financial re-assessment of Ms Y. The outcome showed Ms Y needed to contribute towards her care.
16. Mrs X complained to the Ombudsman in 2017 as she did not consider the Council’s assessed contribution for Ms Y was correct and it did not allow some items of expenditure as DRE. The Ombudsman upheld Mrs X’s complaint because the Council’s guidance was not in line with statutory guidance and rigid when looking at DRE costs. The Ombudsman also considered the Council failed to give proper weight to one of Mrs X’s requests to fund a meal at a fast food restaurant. This was because the need was supported up by Ms Y’s care and support plan.

Current situation

17. Following Mrs X’s previous complaint, the Council agreed to include Ms Y’s outing to the fast food restaurant as DRE and wrote a new DRE policy as recommended by the Ombudsman. The Council’s new policy links a person’s care and support plan as a starting point when carrying out an assessment rather than following the plan rigidly. It allows the Council greater flexibility when considering items of DRE.
18. The Council says it does not have a list of allowable expenses as it will consider individual care and support needs. It says there is no set limit to the cost, as long as it meets a need related to the person’s disability. The expense needs to be reasonable and there is no lower cost alternative item or service available.
19. The Council uses a standard allowance for DRE based on the rate of Attendance Allowance, the care component of Disability Living Allowance or the daily living element of Personal Independence Payment received. If a person receives the higher or enhanced rate of the benefits it applies an allowance of £25.50 a week. If they receive the lower, middle or standard rate of one of the benefits it applies an allowance of £16.00 a week. The Council calculates the cost and divides it into a weekly allowance.
20. Officers met with Mrs X in December 2018 to discuss Ms Y’s DRE costs for the next year. Mrs X provided documents and information for the Council to consider with receipts for expenses. The Council carried out the financial assessment and told Mrs X its decision in April 2019. It confirms it considered Ms Y’s DRE allowing for reasonable expenses for her disabilities. It does not make allowances for everyday costs that everyone has such as food, utilities, clothing and social activities, which should be budgeted for from Ms Y’s MIG of £151.45 a week.
21. The Council says it used Ms Y’s care and support plan as a starting point to calculate her DRE, but not exclusively. It says it has followed its Charging for Care and Support policy and its DRE policy written in line with statutory guidance and law. It says Mrs X is seeking further allowances for DRE items such as clothing, shoes and bedding. The Council says it is unable to allow these because there is no evidence the items are a higher cost or necessary repeated spend directly related to Ms Y’s disability.
22. The Council agreed to include the following costs Mrs X put forward as DRE:
• Replacement clothing- £2.07 a week
• Social clubs- £6.00 a week
• Outings (fast food meal) - £3.00 a week
• Specialist food (Specialist bars) - £8.75 a week
• Vitamin tonic- £0.79 a week
• Spectacles- £4.23 a week
• Craft and supplies- £0.75 a week
• Wipes -£0.76 a week
• Cartons/ boxed drinks- £5.98 a week
• Straws- £0.16 a week
• Specialist drink and drinking yoghurts- £9.21
• Feet pads/plasters- £0.61.
23. The Council noted Mrs X’s arguments for the expenses relating to Ms Y’s disabilities. It explained its reasons for agreeing some items and the weekly cost allowed. The Council agreed an additional allowance of £15.81 on top of the standard DRE allowance of £26.50 a week to cover agreed cost (£42.31) a week from April 2018. The Council did not agree some costs as DRE, so Mrs X appealed at Stage one. The Council did not uphold Ms X’s appeal at Stage one, so she went to Stage two. Ms X referred to Ms Y’s need for specialist pads worn by Ms Y during menstruation and wanted these added as DRE in the stage two appeal.
24. The Council considered Ms X’s appeal at stage two and agreed to allow the specialist pads as part of DRE at £1.75 a week. But it did not uphold any more of Mrs X’s requests. It confirmed Ms Y would receive £44.16 a week DRE.

Disputed items

Wear and tear on the house and bedding

25. Mrs X says that due to Ms Y’s disability she causes damage to furniture and needs bedding washed often, so it needs replacing.
26. The Council says Mrs X has not provided any evidence for the financial assessment to show the frequency she needs to replace bedding. And Ms Y’s care and support plan did not record she suffered from conditions needing bedding washed more often. So, the Council did not support Mrs X’s request for an extra allowance for this. The Council says it will consider the situation on bedding in the next DRE review in April 2020 as Mrs X provided more information after the assessment.

Shoes and clothing

27. Ms X considers the items of clothing submitted were all related to Ms Y’s disability. The Council considered the items but decided it reasonable to assume most clothing would be bought regardless of this. Based on the information provided by Mrs X it agreed there was a pattern of some repeated buys and agreed these as DRE. The Council did not consider Mrs X provided further information to support increasing the agreed allowance. The Council considers the agreed allowance is reasonable DRE in the financial assessment. The Council expects Mrs X to use the MIG allowance of £151.45 a week to include the general purchase of clothing.
28. The Council noted Mrs X’s evidence she had bought several pairs of shoes with special fastenings and lights that Ms Y would only wear. The Council did not consider the information provided supported the costs incurred being in excess of purchases anyone else would make. So did not agree the items as DRE.

Arts and Crafts/learning aids

29. The Council said it agreed an allowance of £0.75 for arts and crafts. But did so in error as it considered the costs are incurred by anyone with this interest. The Council considers Mrs X has not provided information showing Ms Y buys arts and crafts because of her disability. And, that the costs are higher due to her disability than for anyone else with an interest in arts and crafts. It says it should not allow for these items according to its DRE policy. However, it has honoured the costs during the current financial assessment.
30. The Council advised Mrs X it will look at the allowance again as part of the review in April 2020 and any evidence Mrs X wished to present as specific learning aids.

Lunch box and radio

31. The Council considered Mrs X’s request to include a replacement radio and lunch box as items of DRE. The Council considered Mrs X did not provide evidence to show Ms Y bought these items more often than anyone else using a radio or lunch box. The Council considered the items would be covered by Ms Y’s MIG allowance.

Broadband and telephone costs

32. Mrs X advised the Council she only used the broadband and telephone when supporting Ms Y. The Council did not consider this DRE and said it was reasonable to assume she used it for other purposes. The Council considered Mrs X did not provide information showing the cost of telephone and broadband in supporting Ms Y was an extra cost above the standard cost of having a telephone line and broadband. And Mrs X would incur these costs as others do. The Council said living costs such as telephone and broadband services would be covered by the MIG allowance included in Ms Y’s assessment.

Special food

33. Mrs X argued that because of Ms Y’s ritual for certain foods these costs should be included as it related to Ms Y’s disability. The Council accepted Ms Y needs some foods and agreed to an allowance for specialist bars, drinks and boxed cartons because of medical evidence to support the need. The Council did not consider the other foods Mrs X referred to as specific to Ms Y’s disability and would expect Mrs X to buy standard food from the MIG applied in the financial assessment.

Sanitary pads

34. The Council agreed to apply DRE to the sanitary pads Mrs X advised she bought for Ms Y every month at a rate of twelve packs a year with only one receipt from Mrs X. The Council says it agreed this as a weekly charge of £1.75 because there is medical evidence to support the purchase.
35. However, Mrs X advised in her second appeal that due to Ms Y’s menstrual cycle she needs a pack of pads every 28 days making 13 packs a year. So, the weekly cost is £2.00. The Council says Mrs X has not provided any supporting information to confirm Ms Y uses the products more than once a month. Because of this the Council considers the allowance should remain at £1.75 a week.

Mrs X’s additional concerns

36. Mrs X alleges the Council lost certain receipts for items despite an officer collecting the information from her in December 2018. The Council confirms it has records of information from Mrs X and has not lost the receipts. The visiting officer photographed the receipts Mrs X sent for the financial assessment in December 2018.
37. Mrs X raised concerns the Council listed some items under ‘Miscellaneous items’ and was unclear what they related to. The Council confirms they are for clothing including some leggings. It says it has not been able to identify other items because the receipts do not specify what they are. The Council considered them as general items so not allowed as DRE. The Council says by allowing some items under miscellaneous it has been able to calculate Ms Y’s DRE more favourable for her.

Outstanding charges

38. The Council says it has been unable to resolve matters with Mrs X over Ms Y’s financial assessment and DRE outcomes. So, Ms Y has accrued backdated care charges since 26 September 2016 when she became liable to contribute towards the costs. The Council says it has been unable to pursue the charges due to Mrs X’s makes further claims for extra expenses, such as the sanitary pads, when it nearly finalises matters.
39. The Council considers Ms Y can afford the care charges. But if Mrs X believes Ms Y cannot, it will consider a Financial Hardship Review if submitted by Mrs X. This is according to the Council’s normal practice. The Council currently pays Ms Y’s benefits into Mrs X’s bank account. So, it would need access to Mrs X’s account to breakdown how Ms Y’s money is used.
40. The Council says it usually suggests a client’s money is kept separate from another person’s account, but it is a matter of choice and cannot be enforced. However, Mrs X may wish to consider doing so in the future which would simplify Ms Y’s finances especially if there is to be a Financial Hardship Review.
41. The Council says it needs to be able to start collecting Ms Y’s client contribution. It has agreed to consider the case of the extra sanitary pads in the 2020 review. It has asked Mrs X to collect the necessary receipts as it will then show the average monthly spend.
42. The Council says Ms Y currently owes over £3000 for care to January 2020 and it placed a hold on the account during the dispute with Mrs X. The Council says if Mrs X does not request a financial hardship review it will start the procedure for collecting the non-payment of client contribution against Ms Y. It says it will work with Mrs X to agree an affordable repayment plan as well as the ongoing client contribution.

My Assessment

43. The documents provided by the Council show it has drawn up a DRE policy in line with statutory guidance and law which allows it a more flexible approach to financial assessments when considering DRE.
44. Mrs X does not agree with the Council’s decisions not to include certain items as DRE. But I have seen nothing in the evidence I have considered to show the Council was not aware of all the relevant facts, including information provided by Mrs X, Ms Y’s Care and Support Plan and Council policy when it made its decisions. So, there are no grounds for the Ombudsman to criticise the merits of the Council’s decision not to include some items as DRE. The Council has explained its reasons to Mrs X and allowed her to appeal through the Financial Assessment appeal procedure. So, there is no evidence of administrative fault by the Council as it has followed its policy and statutory guidance.
45. The Council confirmed it will reassess some items in the next assessment in April 2020 if Mrs X provides further information to support her requests. Mrs X needs to compile the necessary evidence for the Council to consider. So, I do not consider I can achieve anything more for Mrs X as the Council will review her requests for expenditure on some items again in the next assessment.
46. The Council has clarified the issue over miscellaneous items which covers some items of clothing. The Council confirms it has calculated this in a way that is advantageous to Ms Y.
47. The Council has been unable to pursue payments for Ms Y’s care charges which remain outstanding since September 2016 due to issues over the financial assessments. If Mrs X consider the situation unaffordable for Ms Y, the Council will carry out a Financial Hardship Review which will need to look at the way the expenditure is used and may allow Ms Y additional help.
48. If Mrs X does not wish for the Financial Hardship Review the Council will act over the non-payment of Ms Y’s contribution. The Council is entitled to make a charge for the care services it provides and those receiving the service are expected to contribute towards the care if required. The Council has assessed Ms Y and she is expected to contribute towards the care, and it is for Mrs X to ensure the payments are made.

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Final decision

49. I am completing my investigation. I have found no fault by the Council in the way it considered Mrs X’s request for items of expenses to be considered as DRE for Ms Y.

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Investigator's decision on behalf of the Ombudsman