Summary: Mr Z, on behalf of Ms X, complained the Council failed to provide her appropriate help and support to complete a financial assessment and did not include disability related expenditure in the assessment. While there is no fault in the assessment process there has been fault in the consideration of the disability related expenditure. To remedy this fault the Council will conduct a review and make a new decision.

The complaint

1. Mr Z, on behalf of his daughter Ms X, complains the Council failed to provide appropriate help and support to her in respect of the social care financial assessment and has not included disability related expenditure in the assessment.
2. Mr X says that Ms X is left with insufficient income to enable her to live in a manner appropriate for her age.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

6. Ms X has cerebral palsy and is aged 24. She lives in a privately rented property with a full-time live-in carer. In September 2021 the Council sent her a financial assessment form to complete. Mr Z says that her disability prevents her from opening an envelope let alone completing a form. He says the Council offered no help to complete the form. Mr Z says that he completed and returned the form on behalf of Ms X. In November the Council sent a letter setting out the assessment and how much Ms X was required to pay towards the cost of her care.
7. The letter explained Ms X’s maximum weekly contribution would be £67.83. It provided an explanation of how this worked including examples. The letter provided information about Disability Related Expenditure (DRE) and how it had been applied in this case. It explained it had allowed £28 per week as standard DRE because of the level of disability benefit she received. It said it had not awarded enhanced DRE as no evidence to support the claim had been provided. It sent a pre-paid envelope to enable Ms X to send evidence for further consideration. It also said that if Ms X contacted the Council it would do its best to assist her.
8. Mr Z says the requested payment does not leave Ms X enough to have any kind of social life. He contacted the Council to ask for help and was initially told there was not any appeal process. He says he was told to submit DRE evidence which he did.
9. The Council responded on 19 April 2022 and provided a response to the claim for enhanced DRE rejecting three of the four items. It said the cost of wheelchair repairs and servicing was covered by the standard DRE allowance already awarded. It said claims for PPE, physiotherapy and hotel accommodation costs for carers were not supported by the Care and Support Plan nor by the Care Team and so were not eligible. It said Ms X should contact the NHS or GP for a referral for physiotherapy.
10. Mr Z made a complaint on behalf of Ms X. On 4 May the Council wrote to Mr Z saying a finance manager had agreed to ask the social worker to discuss DRE, to send information on the Household Support Fund and a copy of the waiver application form. It also said a request would be made to the recovery team to put recovery action on hold until the issue is resolved.
11. Mr Z submitted a waiver form to the Council on 27 June. This is an application to cancel or reduce the assessed client contribution. The process for considering a waiver application says that first the Financial Assessment Team should ensure the assessment has been completed and calculated correctly. It should then review the DRE to ensure that all necessary and reasonable disability related additional costs have been disregarded from the assessment. Then it should consider the completed financial waiver form which will set out the service users’ financial circumstances and the reasons why they cannot afford to pay the assessed contribution. The final decision is then made by the relevant Adult Social Care Team.
12. Mr Z emailed the Council on 23 October. He explained he had submitted a completed waiver application form on 27 June and extra information on 18 July but had heard nothing since despite requesting an update on 5 and 23 September. The Council replied and apologised for not contacting him sooner and said it would be in touch before the end of the week. Mr Z contacted the Council again on 30 October seeking an update.
13. The Council asked Mr Z to provide a breakdown of Ms X’s income and expenditure. It said the information provided so far indicated a monthly disposable income of £350 and so asked for a detailed breakdown. Mr Z sent the information requested which showed monthly disposable income of £341.
14. The Council wrote to Mr Z on 22 November with a decision on the waiver application. It said that the income and expenditure information showed spending of £133 per month on items that would normally be viewed as spending from disposable income. This included items such as clothes, mobile phone, broadband and subscriptions. It said that once Ms X paid the social care contribution she would be left with approximately £70 per month which can be used for social outings. It said it was satisfied Ms X could afford her client contribution and therefore the application to waive her client contribution was not approved.
15. Mr Z asked how this decision could be appealed. He said that leaving a 23 year old only £70 a month to socialise is not acceptable as she wants to go out more than once a month. He also said that her disability means she needs physiotherapy every day but there is no NHS provision which is why she has to go private but cannot afford to go as regularly as required. The Council advised Mr Z that if he remained dissatisfied he should contact the Council’s complaints team.

Analysis

16. Ms X requires a full-time live-in carer to meet her care needs. The Council provides this and has carried out a financial assessment to determine what amount Ms X must contribute towards the cost of that care. Mr Z complains the Council did not provide appropriate assistance to Ms X to complete the assessment forms and that he had to complete them on her behalf.
17. I note there are no concerns regarding Ms X’s mental capacity and that she is studying for a Masters Degree at university. While I accept she may not have the ability to complete a written form, the information provided by the Council anticipated the form may not be suitable for all people and so provided information about how to seek assistance. There is nothing to suggest Ms X sought assistance from the Council but instead her father, Mr Z, provided the assistance.
18. I find no fault in the way the Council requested the completion of the financial assessment. It provided information on how to request assistance and I am satisfied Ms X was capable of requesting this if required. The offer to provide assistance shows the Council is aware of the anticipatory duty under the Equalities Act.
19. Mr Z complains that the Council’s charging policy means his daughter is not left with enough money for her to have a social life appropriate for her age. He says that her disabilities mean the costs of her going out can be higher. He says that having only £70 per month for socialising means her lifestyle is very different from other non-disabled people the same age.
20. The information provided shows the Council followed the process for charging in the Care Act 2014 which explains the mandatory duty to undertake an assessment of financial resources. It has applied the minimum income guarantee which means a person’s income does not fall below a certain level. It is not charging Ms X more than it costs for the care to be provided but has calculated an amount it considers she should contribute.
21. A court decision, known as the Norfolk judgment, recognises that changes to a council’s charging policy can have a differential impact on the most severely disabled people who are reliant on welfare benefits and have no access to alternative incomes. While there has not been a recent change in charging policy that affects this complaint, it is still necessary for the Council to consider this differential impact of its charging policy on people with a high proportion of income from benefits.
22. In this case the Council says that it sought legal advice on the possible implications of the Norfolk judgement and that it gave due consideration to its charging policy. It says that it is aware of its duties under the Equality Act 2010 and that it should not take a rigid approach so that the interests of all client groups are balanced and individualised where possible. It says that its Waiver process is a way of considering the individual circumstances of each service user and it believes this is how it can reduce the potential differential impact of those with a higher proportion of income from welfare benefits.
23. I am satisfied the Council has properly considered the impact of its charging policies in light to the Norfolk judgement and find no fault as it has a process, the waiver process, to address this.
24. However, as part of the financial assessment Mr Z submitted an application for the waiver on behalf of Ms X. The application was refused on the basis Ms X has sufficient income to meet the assessed client contribution. The information provided by the Council about the waiver process says that before referring the application to the relevant social care team, the financial team will review the financial assessment including any DRE. On the basis of the information provided, I am not persuaded this happened in this case or that the appropriate consideration was given to DRE.
25. The Care and Support Statutory Guidance says that any reasonable additional costs directly related to a person’s disability should be considered DRE and that what counts as DRE should not be limited to what is necessary for care and support. While the guidance includes examples of what can be considered DRE it is clear the list is not intended to be exhaustive.
26. The Council refused Ms X’s claim for physiotherapy to be considered a DRE. It says the NHS would supply physiotherapy if Ms X met the eligibility criteria. It says that if not then a person can choose to spend their money on private physiotherapy and that the private purchase of health related tasks is not something that the DRE supports.
27. The guidance does not specifically exclude any items and so I consider the Council is wrong to say that physiotherapy cannot be considered DRE. There is nothing to show that NHS physiotherapy is a reasonably available alternative to the private physiotherapy Ms X is paying for. I consider this issue is worthy of further consideration by the Council. It seems to me that this should have been looked at as part of the review before the waiver application was considered but I have seen nothing to suggest this was carried out.
28. In coming to this view, I have considered a recent court judgement RW v Royal Borough of Windsor and Maidenhead [2023] EWHC 1449 (Admin). The case relates to DRE for an autistic adult but I consider the judgement provides a framework for what a council should consider when determining whether spending is DRE. My view is that the Council should ask itself the following:
• Is the need disability related?
• Are the costs necessary and reasonably incurred?
• Are the costs for care and support?
29. I have not seen evidence to show the physiotherapy is available to Ms X on the NHS and so it is possible it is necessary for her to purchase it privately. While the physiotherapy could be regarded as health care rather than social care, it is still a form of care and the Council has a general duty to support wellbeing. So I believe the cost could be considered as DRE but further consideration of the facts is required in order to reach a decision.

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Agreed action

30. To remedy the injustice caused as a result of the fault identified above the Council will, within one month of my final decision, take the following action:
• Carry out a review of the DRE in respect of the cost of physiotherapy using the steps described in paragraph 28 above and in consultation with Ms X. If it decides the physiotherapy is DRE it should recalculate the client contribution and notify Ms X.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman