Summary: Miss B complained that the Council had failed to properly consider her application for disability-related expenditure (DRE) in line with the Care Act guidance and the law and delayed in considering her appeal and complaint about the decisions. We found fault with the Council’s approach. The Council has now agreed to include the disputed items as DRE. It has also agreed to pay Miss B £250 and review its procedures for the future.

The complaint

1. Miss B complained that the London Borough of Hackney (the Council) in respect of her financial assessment for adult social care charges has refused without justification to treat exercise, some special equipment and other costs as disability related expenditure (DRE). It has also delayed in considering her appeals and complaint. This has caused Miss B financial hardship, distress and frustration. She also cannot afford to pay for her carers.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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

4. 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. Miss B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Charging for social care

5. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
6. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. A council must treat each person individually.

Disability-Related Expenditure

7. Councils can take disability-related benefits into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. The Care and Support Statutory Guidance sets out a list of examples of such expenditure. It says any reasonable additional costs directly related to a person's disability should be included. What counts as DRE should not be limited to what is necessary for care and support. For example, above average heating costs should be considered.

Care and Support statutory guidance (the Guidance)

8. The Guidance sets out the principles guiding the approach to charging for care and support needs including the following:
• ensure that people are not charged more than it is reasonably practicable for them to pay;
• be comprehensive, to reduce variation in the way people are assessed and charged; and
• promote wellbeing, social inclusion, and support the vision of personalisation, independence, choice and control. (paragraph 8.2)
9. The intent of the regulations and guidance is to support local authorities to assess what a person can afford to contribute towards their care costs. Local authorities should also consider how to use their discretion to support the objectives of care and support charging. (paragraph 8.40)
10. Local authorities have flexibility within this framework for example, they may choose to disregard additional sources of income, set maximum charges or charge a person a percentage of their disposable income…Although local authorities have this discretion, this should not lead to two people with similar needs and receiving similar types of care and support being charged differently. (paragraph 8.42 - 43)

The Council’s charging policy

11. This policy says that the Council has already makes allowance for extra expenses a person may incur due to their disability as it disregards 25% of disability benefits in its assessment. If the person spends more than 25% of their disability benefits on DRE the Council will then consider if any further expenses should be allowed. It lists the following examples:
• additional laundry costs due to disability
• special dietary needs
• privately arranged care not met by the Council
• purchase and maintenance of special equipment
• special clothing purchases

Section 22 of the Care Act

12. This says that a local authority may not meet a person’s care and support needs by providing or arranging the provision of a service or facility that is required to be provided by the NHS unless doing so would be merely incidental or ancillary to doing something else to meet needs under those sections and the service or facility in question would be of a nature that the local authority could be expected to provide.

What happened

13. Miss B has some long-term health conditions which affect her ability to carry out personal care tasks without support. She is in receipt of both the care and mobility components of Personal Independence Payment (a disability benefit). She has received physiotherapy and occupational therapy from the NHS and attended a pain management programme. These therapies have been time-limited and aim to equip patients with self-management tools.
14. However, Miss B’s condition is lifelong, and the symptoms change and vary. She also has a complicating factor of chronic intractable migraines which are not controlled by medication and symptoms of anxiety and depression. These additional factors make self-management of physiotherapy/exercise challenging.
15. Prior to October 2021 Miss B was living in a different part of the country. She saw a Pilates instructor weekly on a 1:1 basis for support in managing movement, motivation, injuries, pain and progress. The council in that area recognised this cost as DRE.
16. Miss B moved to London in October 2021 to be nearer her family. Instead of the Pilates she employed a personal trainer with an interest in her condition and a willingness to research the latest research and approaches. She also does other exercise with the support of a carer but considers the personal trainer is essential to prevent her condition deteriorating. Her occupational therapist from the local hospital strongly supports the continuation of the personal trainer to aid her physical and mental progress.
17. The Council adopted Miss B’s existing assessment and approved seven hours of personal assistant support per week. It then carried out a financial assessment to determine Miss B’s contribution to her care charges.
18. Miss B provided information to support her request for DRE including £55 a week for a ‘physiotherapy weekly session’. She said on the application form that the physiotherapy provided on the NHS was not enough to meet the needs of patients with her condition.
19. In July 2022 the Council decided Miss B’s contribution to the cost of her care should be around £76 per week. It did not include the personal trainer sessions as DRE.
20. Miss B appealed against the decision in September 2022. In October 2022 the appeal panel met and agreed DRE of £5 per week for shopping delivery and noted Miss B may have extra fuel expenditure but had not provided any evidence of this. It refused other items including vitamins, electric dish scrubber, internet and telephone, printer ink, clothing as regular living expenses and already included in the protected income allowance. It said physiotherapy was a health provision and available through the NHS, so did not allow the personal trainer sessions. The Council notified Miss B of the outcome on 2 November 2022.
21. In November 2022 Miss B enquired about appealing the decision. She referred to the personal trainer sessions as physical therapy. The Council said it would refer the case to the review team. In December 2022 Miss B chased the Council and asked for debt recovery to be put on hold. In its reply the Council said as an exception it would refer the matter to the review team. It said that it was unable to fund health needs as DRE because section 22 of the Care Act prevented the Council from doing so.
22. Miss B challenged this view saying that the Care Act prevented the Council from funding health costs. But this was not the same as considering them to be DRE as the Council was not directly arranging or paying for it. She said it was common for DRE to include consideration of healthcare adjacent (disability-related) costs not met by the NHS such as massage, guided physio/personal training as her previous council had done.
23. She provided a letter from her occupational therapist at the hospital, who explained that the ‘guided exercise input from a private personal trainer’ was not available to Miss B from the NHS and she supported Miss B’s request for this form of physical therapy to be treated as DRE. Miss B said there was more evidence to follow.
24. In mid-December 2022 Miss B made a formal complaint. The Council said it was waiting for her additional evidence and it would then put her case to the next appeals panel meeting on 9 February 2023.
25. In January 2023 Miss B said she had already provided the evidence in December 2022. The Council pointed out she said she had more to provide.
26. Miss B provided information for the panel on 7 and 8 February 2023 including a supporting letter from her GP. The Council said it was too late for the Council to consider so it deferred the appeal to the next meeting in March.
27. The panel met on 9 March 2023. Miss B chased the Council for a decision on 11 April 2023 and the Council sent the decision that day. It had agreed an additional fuel allowance of £13.39 per week and £15.86 for cleaning costs. In respect of physiotherapy/exercise, it refused on the grounds it was a health provision which does not accompany a care and support service which it is either providing or expected to provide.
28. Miss B then complained to us, and we referred it back to the Council to respond to through its own complaints process.
29. The Council carried out a review of Miss B’s care needs. In the review document the social worker noted that Miss B had given notice to her personal assistant because she could not afford the contribution on top of the cost of the personal trainer. They said she spends the ‘bulk of her money on the weekly physio sessions which support her physical functioning and without this she would likely be immobile’.
30. Miss B provided further information about the personal training sessions. The Council responded to her complaint on 5 July 2023. It repeated the Council’s view expressed in the appeal decisions and said:

“After looking at both the appeals and decision notices, I can see that consideration of the evidence regarding the NHS' current incapacity to provide the type of physiotherapy you need was taken into account. In the decision letter, it was explained that the panel could not agree to an additional allowance for physiotherapy; this is because physiotherapy is a health provision that is available through NHS provision.”

31. Miss B complained again to us. She is currently without any care support as she cannot afford the contribution in addition to the weekly personal trainer.

Analysis

32. The Council has refused to treat the cost of Miss B’s personal trainer as DRE, as it considers it to be a health need and says it is prevented from funding a health need under section 22 of the Care Act 2014. I consider the Council has misdirected itself in terms of deciding whether or not to treat an item as DRE: It is not being asked to fund, provide or arrange the personal trainer but to consider whether it is a necessary cost arising from Miss B’s disability.
33. The sessions appear to be regular exercise to help Miss B manage her movement and mobility and thereby maintain her wellbeing and independence (in accordance with paragraph 8.2 of the Care Act guidance). The Council has not explained why it considers the sessions are physiotherapy rather than regular exercise. This is fault which has caused Miss B confusion and frustration.
34. This fault has been exacerbated by the Council’s insistence that the ‘physiotherapy’ is available on the NHS while at the same time acknowledging that it is not available to Miss B at the hospital she attends. This conclusion makes no sense and is not based on the evidence provided by Miss B.
35. The fact that another council has interpreted the legislation very differently and treated Miss B’s previous exercise sessions as DRE also calls into question the Council’s consideration of the matter. The guidance acknowledges that councils can devise their own procedure for calculating DRE. But it expects councils to follow the principles set out in the guidance so that variation can be avoided and two people with similar needs should not be treated differently. It follows from this that a person should not be treated in a significantly different way when moving to a new area.
36. It is not my role to say that the Council should treat the exercise as DRE, but the Council’s consideration of the issue appears flawed, at odds with the guidance and contrary to the practice elsewhere in the country. I am also concerned that it may be operating a blanket policy of excluding all exercise as a health function and not considering each case on its individual merits to decide whether particular costs are necessary because of their disability.
37. I have also considered the fact that Miss B has cancelled her personal assistant care because she cannot afford this in addition to the personal trainer. This indicates the importance of the exercise sessions to Miss B in maintaining her health and wellbeing. I am also concerned that she is being left in a vulnerable position as she is not receiving care and support to meet her identified needs.
38. Miss B has been caused and continues to experience significant distress and worry, about the debt she has incurred and her inability to afford the care she needs.
39. In response to an earlier draft of this decision the Council said it was not previously aware that the sessions were exercise rather than physiotherapy. I accept Miss B referred to the expense as physiotherapy in her application, but she did say it was not available on the NHS. I would have expected the Council to ask for some details of what this therapy involved, particularly when Miss B provided the letter from her occupational therapist at the hospital in December 2022 who described the sessions as ‘guided exercise input from a private personal trainer’. I also note Miss B provided more details of what the sessions involved and why she needed them to support the formal complaint in June 2023. The Council has not engaged with this detail at all and continued its blanket refusal of ‘physiotherapy’ as a health need.
40. Following receipt of further information from the Council, I do not consider the Council delayed in submitting Miss B’s appeal to the panel between November 2022 and February 2023 as it was waiting for more evidence from Miss B. However, I consider it should have examined the evidence it received in December 2022 in respect of the personal training sessions with a more inquiring approach and this may have resulted in a different decision at an earlier point.

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Agreed action

41. In response to an earlier draft of this decision and following a discussion to clarify that the sessions were exercise rather than physiotherapy (as previously explained by Miss B), the Council has agreed to include the personal trainer as DRE.
42. I welcome this agreement and recommend the Council, within one month of the date of my final decision:
• recalculates the DRE, backdates it to the date of the original financial assessment and notifies Miss B of the outcome, including the impact on the outstanding care charges debt; and
• pays Miss B £250;
43. I also recommend within three months of the date of my final decision that the Council reviews its DRE policy to ensure it is not operating a blanket approach in respect of exercise or other health costs and is not wrongly relying on section 22 of the Care Act 2014 to refuse expenses as DRE.
44. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

45. I consider this is a proportionate way of putting right the injustice caused to Miss B and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman