Summary: Ms X complains the Council’s care charging policy is discriminatory. She also complains the Council failed to properly consider her disability related expenditure during a financial assessment. We find fault with the Council for the delay in accepting her disability related expenditure. We also find fault with the delay in the Council completing its review of its care charging policy. We have made recommendations.

The complaint

1. Ms X complains the Council’s care charging policy is discriminatory. She also complains the Council failed to properly consider her disability related expenditure during a financial assessment. Ms X says the Council’s actions have caused her financial loss and distress.
2. Ms X is represented by Mr Z.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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. I considered the information provided by Mr Z.
7. I made enquiries with the Council and considered the information provided.
8. I sent two draft decisions to Mr Z and the Council and considered their comments.

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What I found

Norfolk judgment

9. The Courts considered how councils need to have regard to the potential differential impact of charging policies on people who have a higher-than-normal proportion of their income from benefits.
10. In SH, R (On the Application Of) v Norfolk County Council & Anor [2020] EWHC 3436 (Admin) (18 December 2020), the court found the council had not considered the differential impact of its charging policy on the most severely disabled people. The council’s policy had set its Minimum Income Guarantee (MIG) at the bare minimum.
11. The court recognised the changes would affect some people but, crucially, had an inevitably greater impact on people with a higher level of benefits and no access to alternative incomes. This was because the daily living components of disability benefits could be considered as income for the purposes of charging calculations, whereas earnings received by those who can work are fully disregarded by the regulations. This results in a greater proportion of severely disabled people’s income being taken into account for the purposes of care charges than those who can work.
12. The court also found the council had not identified or discussed this difference and did not seem to have considered alternatives suggested in guidance, such as taking into account all the person’s income above the minimum income guarantee or setting a maximum percentage of disposable income.
13. The court found the council had put in place some mitigation for the change, but this did not properly address the fundamental discriminatory impact and was ‘manifestly without reasonable foundation'.

Disability related expenditure (DRE)

14. If a council takes a disability benefit into account when calculating how much a person should contribute towards the cost of their care, they must also assess DRE in the financial assessment. 
15. This is because the Care Act statutory guidance says councils must leave individuals with enough money to pay for necessary DRE to meet any needs not met by the council. DRE are costs that arise from a disability or long-term health condition. Councils should not be inflexible in the costs it accepts and should always consider individual circumstances. (Paragraph 39)

Principles of good administrative practice

16. The Ombudsman publishes a guidance document setting out the standards we expect from bodies in jurisdiction.
17. The first principle is getting it right. This includes making timely decisions as well as explaining and responding to any delays proactively.

What happened

18. Ms X is registered blind and is partially deaf. She receives benefits. In January 2020, she moved to the Council’s area. Ms X was receiving care, via direct payments, in her previous local authority area. Ms X has a personal assistant that helps her with her care and support needs.
19. The Council completed a care assessment and assessed Ms X as needing care and support to meet her needs. The assessment did not outline any expenses Ms X incurred because of her disabilities. Ms X told the Council she wanted her personal assistant to continue to support her and asked to receive her care package through direct payments.
20. In July 2020, the Council asked Ms X to provide receipts or invoices for any disability related expenses she wanted considered. Ms X asked the Council to consider the following DRE:
• Internet at £4 per week.
• Gardening at £2 per week.
• Cleaning at £2 per week.
• Window cleaning at £2.
• DIY at £3.50 per week.
• Decorating at £6 per week
• Laundry at £15 per week.
• Disability equipment at £2 per week.
21. In August 2020, the Council completed a financial assessment. The Council did not allow the DRE Ms X requested in the assessment. The Council assessed Ms X’s financial contribution towards the cost of her care to be:
• January 2020 – April 2020: just over £93 per week
• April 2020 onwards – just over £101 per week

Ms X paid her assessed contribution as required by the financial assessment.

22. In April 2021, Ms X’s representative, Mr Z complained to the Council on her behalf. Mr Z said the Council’s charging policy was discriminatory because it had applied the standard minimum income guarantee to Ms Z’s case even though she was severely disabled, in receipt of the higher rate care component of disability living allowance, and unable to work. Mr Z drew the Council’s attention to the Norfolk judgment. Mr Z also complained the Council had failed to consider Ms X’s DRE during her financial assessment.
23. The Council responded to Ms X’s complaint in April 2021. The Council explained that it was aware of the findings following the Norfolk judgment and that it had started a review of its charging policy to ensure it is lawful. The Council said once it received legal advice, it will publicly tell residents of any agreed changes.
24. On Ms X’s complaint about DRE, the Council said Ms X had not provided evidence to support the expenses she wanted considered and that the expenses were not in her care plan. This meant the Council did not consider the expenses arose from Ms X’s disability and so it did not consider the claimed DRE in the financial assessment. The Council said it would review the financial assessment to consider the DRE.
25. In response to our enquiries, the Council confirmed it was still reviewing its charging policy and it would make any changes recommended by its legal team.
26. The Council also confirmed it completed the financial reassessment in April 2021. The Council said it had agreed to the DRE Ms X wanted and reassessed her contribution as follows:
• January 2020 – April 2020: just over £28 per week
• April 2020 – April 2021: just over £36 per week
• April 2021 onwards: just over £44 per week
27. The Council confirmed it had backdated this to January 2020 and so it had repaid Ms X for the overpayments she had made between January 2020 and April 2021.
28. The Council confirmed it should have paid Ms X just over £20562 for the period January 2020 to October 2021. The Council said it has now repaid Ms X this amount.

Analysis

29. The Ombudsman’s position on the Norfolk judgment is to ask councils how they have had regard to the implications of the judgment. In this case, the Council has shown they are aware of the judgment and have sought legal advice on their own charging policy.
30. The Ombudsman cannot consider how the Council made its decision until it has completed its review and decided whether to make changes to its charging policy. Therefore, there is nothing further the Ombudsman can do at this stage.
31. Once the Council has completed its review, it is open to Ms X to make a new complaint to the Council if she is unhappy with the decision made. Once she has completed the Council’s complaints procedure, she may bring the complaint to the Ombudsman to assess.
32. However, the evidence available does suggest it is taking the Council some time to complete the review of its care charging policy. The Council noted in its April 2021 complaint response that it had initiated a review. Therefore, it would be reasonable, on balance, to say the review likely started in April 2021. At the time of writing this draft decision, five months since the review likely started, the Council has still not completed its review.
33. While there is no statutory timescale for a Council to complete a review of this nature, the Ombudsman has published principles of good administrative practice. The first principle is getting things right. This includes making timely decisions, as well as explaining and responding to any delays proactively.
34. The Council has provided no reason for why it has not completed the review. It has also not explained whether there has been any reason for a delay in completing the review. Therefore, I am not satisfied the Council has considered its review of the charging policy in a timely manner. This is fault.
35. I consider the fault has caused Ms X an injustice. This is because until the Council completes its review, Ms X must continue to pay for her care under the Council’s current policy. Therefore, there is uncertainty as to whether Ms X is paying more for her care than is lawful. This is distressing for her.
36. On Ms X’s DRE, the Council said it did not accept the DRE during the August 2020 financial assessment as Ms X had not provided evidence to support her DRE claims. There is evidence the Council asked Ms X to provide receipts or invoices for any disability related expenses she wanted considered. There is no evidence Ms X provided the evidence at the time it was requested.
37. However, the Council also said it did not accept the requested DRE because the expenses were not included in Ms X’s care plan. Therefore, there was no evidence Ms X’s DRE was a result of her disability. The Council referred Ms X’s case back to its care management team to review her care plan. The purpose of the review was to evidence that Ms X’s expenses occurred due to her disability. There is no evidence the Council completed this review.
38. Therefore, there does appear to be some fault with the Council’s actions in relation to Ms X’s care plan and this caused a delay to the Council accepting Ms X’s DRE. This is fault.
39. The fault identified caused Ms X financial loss because she had to pay more than she should have towards her care and support. She will also have been caused distress at having to pay more towards her care and support than she should have.
40. There is evidence the Council has already taken appropriate action to remedy some of the injustice caused by the fault identified. This is because it completed a new financial assessment which resulted in the Council accepting Ms X’s DRE. This lowered Ms X’s assessed contributions.
41. This meant Ms X had overpaid her contributions for the period January 2020 to April 2021. The Council has recognised this and repaid Ms X the total amount she overpaid during this period. This is appropriate to remedy the financial loss Ms X caused by the fault.
42. However, while the Council has remedied the financial loss, the Council has not remedied the distressed caused to Ms X by the fault. Therefore, I consider a further remedy would be appropriate in the circumstances to recognise the distress caused.

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Agreed action

43. To remedy the injustice caused by the fault identified, the Council has agreed to complete the following:
• Apologise to Ms X for the injustice caused by the fault identified.
• Pay Ms X £200 to recognise the distress caused by the fault identified.
44. The Council should complete the above within four weeks of the final decision.
• Complete the review of its care charging policy, taking account of the Norfolk judgment.
• If, following the review, the Council decides to make changes to its charging policy that affects the amount someone must pay towards the cost of their care, it should consider whether it is appropriate to provide a remedy to those affected.
45. The Council should complete the above within five months of the final decision.

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Final decision

46. I find fault with the Council for the delay in accepting her DRE. I also find fault with the Council for not completing its review in a timely manner. The Council has accepted my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman