Summary: Mr X complained the Council withdrew the Disability Related Expense for his gym membership. I found no fault with how the Council reached its decision.

The complaint

1. Mr X complained the Council withdrew the Disability Related Expense (DRE) for his gym membership. Mr X says the gym membership is essential for his well-being, linked to his anxiety and depression, and to prevent him from gaining weight.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with an organisation’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

5. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
6. Mr X provided comments on my draft decision which I considered before making my final decision.

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What I found

Relevant law guidance and policy

7. The Care Act 2014 (‘the Act’) introduced a requirement that local authorities should promote ‘wellbeing’ and signifies a shift from existing duties on local authorities to provide particular services, to the concept of ‘meeting needs’. The concept of meeting needs recognises that everyone’s needs are different and personal to them. Local authorities must consider how to meet each person’s specific needs rather than simply considering what service they will fit into. (Care and Support Statutory Guidance, Chapter 1), (‘The Guidance’)
8. If a council decides a person is eligible for care, it must prepare a care and support plan. This must set out the needs identified in the assessment. It must set out a personal budget which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, section 26)
9. The Guidance sets out what should be considered a DRE. The list includes:
• the costs of any privately arranged care services required, including respite care;
• day or night care which is not being arranged by the local authority;
• personal assistance costs, including any household or other necessary costs arising for the person; and
• other transport costs necessitated by illness or disability. (The Guidance, paragraph 40)
10. The Guidance also says the following:
• The above list “… is not intended to be exhaustive and any reasonable additional costs directly related to a person’s disability should be included.” (The Guidance, paragraph 40)
• That a person’s care plan “… may be a good starting point for considering what is necessary disability-related expense. However, flexibility is needed. What is disability-related expenditure should not be limited to what is necessary for care and support.” (The Guidance, paragraph 41)
11. The Council has a guide to DREs. The Council’s guide says it will ask five key questions when considered any claim for a DRE:
• Is the person in receipt of disability benefits.
• Is the expense necessary. This means the expense is a “need” rather than a “choice” and if not having the expense would negatively affect a person’s day-to-day life.
• Is the expense reasonable.
• Is the expense directly linked to the person’s disability, medical condition or care need. This means a person only needs this expense because of a their disability, medical condition or care needs and someone who did not have the same needs would not have to pay for this expense.
• Is the expense able to be met by any other means.
12. If the answer is “yes” to all five of the questions the Council can consider allowing this as a Disability Related Expense.

What happened

13. Mr X has a Care and Support Plan with the Council. Since 2017, the Council has funded Mr X’s gym membership through a Disability Related Expense (DRE).
14. On 14 April 2022, Mr X’s father made a DRE claim for Mr X’s personal trainer to help him use the gym safely. Mr X’s father also put in an increased claim for Mr X’s gym membership because of an increase in costs.
15. The Council reviewed the request and accepted the increased cost in the gym membership but rejected the personal trainer request as it decided this was a “lifestyle choice”. The Council told Mr X’s father about its decision on 10 May 2022.
16. Mr X’s father appealed the Council’s decision not to award DRE for Mr X’s personal trainer on 18 May 2022. Mr X’s father said the personal trainer was essential to ensure Mr X used the equipment safely and properly.
17. The Council responded to the appeal on 15 June 2022. The Council said Mr X had attended a gym for several years so the personal trainer is not essential to enable Mr X to use the gym so it was not a DRE.
18. Mr X’s father made a further appeal to the Council about its decision over the personal trainer. Mr X’s father explained the personal trainer is essential because it enables Mr X to use the gym safely and to follow correct gym etiquette.
19. The Council reviewed Mr X’s father’s appeal and decided:
• Mr X’s gym membership was not a DRE as it did not meet the criteria outlined in the Care Act. This was because while Mr X liked to exercise there are other ways he could do this such as walking or online classes.
• Mr X’s personal trainer would be a DRE because Mr X needs support at the gym because of his disabilities to ensure he uses equipment safely and correctly.
20. The Council wrote to Mr X’s father on 29 June 2022 and advised it had previously allowed Mr X’s gym membership in error and it should not have allowed this as a DRE. The Council said Mr X’s gym membership was a lifestyle choice and not directly related to his disability. The Council said it would continue to fund this DRE until 3 October 2022 to allow Mr X time to adapt to this change. The Council confirmed it considered Mr X’s personal trainer a DRE on review.
21. Mr X’s father complained to the Council on 7 July 2022 about it stopping Mr X’s DRE for his gym membership. Mr X’s father said that Mr X needed to go to the gym to benefit from the personal trainer which the Council has allowed a DRE for. Mr X’s father said Mr X’s gym membership directly relates to his disability and is essential for managing his weight and is not a lifestyle choice.
22. The Council responded to Mr X’s complaint on 29 July 2022. It said its decision the gym membership was not necessary is in line with the guidance. The Council said that if Mr X chose to go to a gym then the personal trainer is essential to enable Mr X to use the gym safely because of Mr X’s disability. The Council said that Mr X’s gym membership should be in his Care and Support Plan and not as a DRE and explained how to request a review for this.

Analysis

23. The Ombudsman is not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process.
24. The Ombudsman must decide if the Council has considered the relevant legislation and policies in making its decision. If the Council has considered the relevant policies and reached a suitable decision in line with these policies, the Ombudsman cannot find fault.
25. A council must consider granting a DRE for any reasonable extra cost a person with a care and support plan may incur which relates to their disability.
26. The Guidance outlines a list of main expenses which could fall under a DRE but notes that this list is not exhaustive. A council can set out its own criteria or guidelines to assess what is, and is not, a DRE provided it follows the Care Act and the statutory guidance.
27. The Council’s five questions guide does not conflict with the Care Act or the statutory guidance.
28. The Council has shown it applied the five questions to Mr X’s father’s request for a DRE for both Mr X’s gym membership and his personal trainer. The Council decided Mr X’s gym membership failed to meet two of the five questions because it was neither necessary nor directly linked to Mr X’s disability.
29. The Council’s decisions that Mr X’s gym membership is not necessary is one it was entitled to make. The Council has rationalised that Mr X could exercise in other ways meaning it is not a “necessary” expense and is a lifestyle choice. The Council also rationalised that Mr X’s gym membership does not directly relate to his disability. This decision is also not unreasonable as any other person without Mr X’s disabilities would face similar results for not attending a gym. This is supported by the Council’s decision the personal trainer does relate to Mr X’s disability. This is because the personal trainer enables Mr X to use the gym correctly in a manner which is not necessary for someone without Mr X’s disability.
30. The Council allowing Mr X’s gym membership as a previous DRE shows a previous mistake by the Council which has worked in Mr X’s favour. This does not show a fault in the Council’s decision amending its position moving forwards.
31. The Council has followed the relevant guidance and applied its policy correctly. I do not find fault with the Council.

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Final decision

32. I have completed my investigation as there was no fault in the Council’s decision.

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Investigator's decision on behalf of the Ombudsman