Summary: The Council failed to properly consider Ms Y’s disability related expenditure. It acknowledges its failings and has agreed to complete a fresh financial assessment and backdate the expenditure to the date Ms X raised it with the Council.

The complaint

1. Ms X complains the Council has failed to properly consider her sister, Ms Y’s disability related expenditure.

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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. 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)
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:

• considered the complaint and discussed it with Ms X;
• considered the correspondence between Ms X and the Council, including the Council’s response to the complaint;
• made enquiries of the Council and considered the responses;
• taken account of relevant legislation;
• offered Ms X and the Council an opportunity to comment on a draft of this document.

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What I found

Relevant legislation

Care and support statutory guidance

5. This document sets out Guidance on how councils meet the terms of the Care Act 2014. It says councils can charge for care and support, except where they are required to provide it free of charge, (set out in Section 14 of the Act).
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. There are certain items of expenditure that can be deducted from a person’s income before the council decide whether a person can afford to contribute to your social care costs called Disability Related Expenditure, or 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. Annex C, Section 40 of the Guidance provides examples of expenditure that may be treated as DRE. It makes clear the list is not exhaustive. 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.

Background

10. Ms Y is 53 and has a learning disability. Ms X is court appointed deputy for Ms Y’s health, welfare and finances. She provides live-in support for Ms Y one week in four and provides support in addition to this.
11. Ms X says she contacted the Council in 2019 to ask it to consider the costs of private ear syringing and osteopathy expenses as DRE. She explained Ms Y needs osteopathy treatment because of long-standing joint problems, for which she previously had surgery. She says Ms Y has built up a trusting relationship with the osteopath and the treatment is vital to her continued wellbeing. At the time, the Council refused to consider this expense as DRE.
12. Ms X has a letter from a practice nurse at Ms Y’s GP surgery confirming Ms Y’s need for regular ear syringing, and that the practice no longer provides the treatment. The treatment is available at an NHS hospital some miles away but the journey, and a hospital environment, would cause Ms Y significant distress. Ms X says the private treatment is provided at a small local practice and Ms Y has built a rapport with the clinician. At the time the Council refused to consider the expense as DRE.
13. In March 2020 Ms X complained to the Council about Ms Y’s contribution to her care costs, and its refusal to consider private osteopathy treatment and ear syringing as DRE. The Council acknowledged Ms X’s complaint on 8 April 2020 but says it did not deal with it because of the pandemic. Ms X pursued the matter for most of 2020 without success. She understands the pressures caused by the pandemic and was accepting of the initial delay.
14. Ms X says because of the pandemic Ms Y’s expenditure has increased due to being at home all day. Utility costs have increased, as have costs associated with incontinence, which include, pads, kylie sheets and added clothing and shoes. Ms X says the current DRE allowance does not take account of these increased costs.
15. The Council says an additional 25% direct payment monies has been available without the need for a review since 30 March 2020 and that it sent all service users information about this, and the Coronavirus, in March 2020. Service users were advised to keep records/receipts and to contact the Council should such support be required. The Council provided me with copies of this information, which I forwarded to Ms X. Ms X says she did not receive the information
16. During this investigation the Council accepted that Ms Y’s expenditure increased because of the pandemic. It also acknowledged additional expenses for incontinence. It says kylie sheets, additional underwear and clothing are agreed as DRE. It also agreed that additional water costs, gas and electricity costs could be considered as DRE.
17. It has now agreed to consider the costs of liquid soap, toilet rolls and two boxes of disposable gloves a week as DRE.
18. In respect of ear syringing, the Council received the letter Ms X provided from Ms Y’s GP surgery confirming her need for the treatment. It now agrees the cost of this treatment should be considered as DRE and agrees to backdate it to the date Ms X notified it of the expense.
19. The Council says it asked Ms X to obtain information from Ms Y’s GP about Ms Y’s need for osteopathy treatment in July 2021, and to date this information has not been provided, and when it is received it will consider the cost as DRE and if appropriate backdate it to the date Ms X notified it of the expense. Ms X says she has not been asked to provide this, but she will do so immediately.
20. The Council says it drafted a response to Ms X’s complaint on 4 June 2021, but the letter was not sent until 22 July 2021 after Ms X made a complaint to this office. It says the delay was due to several reasons including the pandemic, a manager being on long term sick leave and a complaints officer who no longer works for the Council, who had closed the case, consequently colleagues were unaware of the complaint. It acknowledges this error and the considerable delay in responding to, and addressing the concerns Ms X raised. It says it will remedy this delay by backdating all DRE from the date Ms X notified it of the expenses.
21. The Council says it has written to Ms X to arrange a review date and to complete a fresh financial assessment. Ms X confirms a social worker has contacted her with a view to meeting, but no date has been confirmed. Ms X is not aware of the Council’s recent decision to include and backdate all requested DRE, apart from osteopathy expense, which is pending further clarification.

Analysis

22. Councils have discretion (a choice) about whether to charge for services. The general approach must be set out in its charging policies, and it must be able to explain each individual decision.
23. The Statutory Guidance contains a substantial list of items that can constitute DRE, but it makes clear that the list is not exhaustive, and any reasonable costs directly related to a person’s disability should be included. Councils should not be inflexible or adopt blanket policies.
24. In this case the Council has given no given no good reason why it did not consider the expenses related to osteopathy and ear syringing in 2019. If it deemed it had insufficient evidence to support the need for these treatments, it should have requested Ms X provide further evidence from Ms Y’s GP.
25. It is clear from the information I have seen Ms X is a diligent record keeper. She says she has not been asked to provide evidence relating to Ms Y’s osteopathy treatment. I find it unlikely that she would not have complied with a request to provide supporting information if asked. On that basis, I find it more probable than not, that Ms X has not received a request to provide such information.
26. The Council says it provided information to all service users in March 2020 about the additional DRE allowance available, and more general advice about the coronavirus. Ms X says she did not receive this information. On the balance of probability, I find in Ms X’s favour. It is clear Ms X has spent considerable time pursuing the issue of DRE. Had she received such information it is more probable than not, that she would have contacted the Council, and/or referred to it in her correspondence with the Council and this office.
27. During this investigation the Council accepted the increased costs Ms Y incurred because of the pandemic. There is no good reason why it did not do so sooner, particularly when it had additional funds available for such circumstances.
28. Ms X has supported Ms Y, a vulnerable adult, through the pandemic. This has been a stressful and worrying time for her. Pursuing this complaint has added to her stress and caused her unnecessary worry and frustration.
29. I note the Council has agreed to backdate all requested DRE, apart from osteopathy, which requires further clarification. The Ombudsman welcomes this action.
30. The Council acknowledges it failed to deal with Ms X’s complaint properly.

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Agreed Action

31. The Council has agreed to complete the following action within four weeks of the final decision:

• complete a fresh financial assessment and backdate all expenditure to the date Ms X notified it of the expenses;
• consider the cost of private osteopathy treatment as DRE (pending clarification from Ms Y’s GP);
• provide Ms X with a written apology for the faults identified above;
• make a payment of £250 to acknowledge the delay and a further £250 to acknowledge the time and trouble Ms X has been put to pursuing the matter with the Council and this office;
• provide Ms X with a copy of the financial assessment and a clear breakdown of the DRE;
• provide evidence of all the above to this office.

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Final decision

32. The Council failed to properly consider Ms Y’s disability related expenditure. It acknowledges its failings and has agreed to complete a fresh financial assessment and backdate the expenditure to the date Ms X raised it with the Council.
33. The Council acknowledges it failed to deal with Ms X’s complaint about the above matters properly.
34. The recommendations above are a suitable way to remedy the injustice caused.
35. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman