Summary: Mr G complains on behalf of his daughter Miss F, that the Council has failed to recognise Miss F’s costs for a personal trainer and physiotherapy as disability related expenses. The Council has considered the request and evidence provided but decided these are services that should be met by the NHS if required. I do not find fault by the Council in the actions it has taken to reach a decision.

The complaint

1. Miss F is represented by her father Mr G, who complains on her behalf. He says the Council has failed to recognise Miss F’s personal trainer and physiotherapy as a Disability Related Expense (DRE). Mr G says the Council ignored evidence provided to it from specialists. He says because the Council does not approve the DREs, Miss T has to pay for the services herself and she does not have money to do so.

Back to top

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)

Back to top

How I considered this complaint

4. Before issuing this final decision statement, I considered:

• Mr G’s written complaint to the Ombudsman and any supporting information he supplied.
• Information supplied by the Council to Mr G and to the Ombudsman.
• Relevant law and guidance referred to in the text below.
• I invited Mr G and the Council to comment on a draft decision, and considered any comments made in response.

Back to top

What I found

5. The Care Act 2014 is the legislation that sets out local authorities’ powers and duties in respect of social care. The Care Act 2014 is accompanied by a guidance document entitled Care and Support Statutory Guidance. This provides guidance for local authorities on how to meet their statutory duties under the Care Act.
6. Councils must carry out an assessment for any adult who appears to have a need for care and support. Decisions made by councils about whether someone’s needs are eligible for care and support must be made based on an assessment.
7. The purpose of an assessment is to identify the person's needs, how they impact on the person’s wellbeing, and the outcomes the person wishes to achieve in day-to-day life. Assessments provide a full picture of the person’s needs. The local authority must involve the person being assessed in the process as they are best placed to judge their own wellbeing. (Care and Support Statutory Guidance, Sections 6.5, 6.9, 6.12, 6.13, and 6.30)

Financial Assessment and Disability Related Expenses

8. 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.
9. The care and support statutory guidance specifies examples of what local authorities should consider as a DRE. It also says councils should consider things outside of the specified list, that may be taken into account as a DRE. It is the Council’s discretion as to whether it accepts something is a DRE.

What happened

10. Miss F is a disabled person and received direct payments to pay for her care. From 2017, she should have made a contribution towards her care. This did not happen, and a debt accrued to over £15,000. Miss F and her family challenged the Council about the contributions in July 2019.
11. The Council carried out a financial reassessment in September 2019 and the outcome was that Miss F’s contribution should increase. Mr G challenged this and said Miss F does not have any funds to contribute.
12. The Council said it should have reviewed Miss F’s contributions in 2018 and taken action when it realised payments were not being made, but did not do so. It reduced Miss F’s debt by 50% as a remedy for its error.
13. Mr G says the Council should have also considered Miss F’s personal trainer and physiotherapist as a DRE. Mr G believes it is unfair for the Council to insist Miss F pays for these services, as they prevent Miss F needing further care.
14. Miss F’s physiotherapy and personal trainer were not listed as an assessed need in her care plan.
15. The Council said it does not recognise a personal trainer as a DRE and asked Miss F to provide evidence about the physiotherapy so it could consider whether it would recognise that as a DRE.
16. Evidence was provided by Miss F’s GP that the physiotherapy was beneficial to her and reduces her need for further care. The letter also said the NHS would only be able to provide physiotherapy on a short-term basis.
17. The Council considered the information provided and decided it does not consider the physiotherapy as a DRE. It said the physiotherapy is a medical requirement that can be met by the NHS as and when needed.
18. In response to my enquiries, the Council also said a personal trainer requirement should be met by the health service if it feels one is necessary for Miss F.
19. The Council said refusal of the requested DRE’s is in line with other similar requests it has made for others in the local authority area.

Analysis

20. The requested DRE’s have been considered by the Council. It has done so in accordance with statutory guidance and has decided the NHS is the body who should and can provide such services to Miss F, if it considers them necessary. The Council has reached a decision and explained its rationale.
21. I do not find fault in the actions of the Council. The Council has considered evidence provided to it about the requested DRE’s, and made a decision, which we cannot question.
22. Although the complaint to the Ombudsman was not about Miss F having to make any contributions to her care, I note the Council has written off half of the outstanding debt as it had not addressed the issues when it should have.

Back to top

Final decision

23. I do not find fault with the action of the Council. It has considered evidence supplied and made a decision using the correct process, and we cannot question a decision that is properly made.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman