Summary: Mr X complained that the Council failed to properly consider his request that it include medical cannabis as a disability related expense when it completed his financial assessment. We do not find the Council at fault.

The complaint

1. Mr X complained the Council did not properly consider his disability related expenditure (DRE), when it completed his financial assessment. He says it would not consider a private prescription as DRE.
2. Mr X says the Council’s refusal to count his medical cannabis as DRE has left him unable to afford care. He would like the Council to review this decision.

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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 how the organisation made its decision, 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 considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
6. Mr X and the Council have had an opportunity to comment on my draft decision. I considered all comments received before making this final decision.

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What I found

Law and guidance

Charging for social care services: the power to charge

7. 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)
8. 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.
9. Councils can take disability-related benefit 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.

Background

10. The Council carried out a financial assessment for Mr X in September 2024. It explained to Mr X that if he wished to take up non-residential care, he would be required to make a contribution of approximately £25 per week.
11. The Council provided a breakdown of what it had considered as part of its calculation, including items it accepted as DRE.
12. The assessment document shows it considered Mr X’s medical cannabis prescription, but did not include this as DRE. Mr X complained on this basis.
13. Mr X also provided the Council with a letter from the private clinic from which he was purchasing his medical cannabis. The Council explained it needed an independent opinion from an NHS practitioner.
14. The Council explained to Mr X that it had taken legal advice on this point, and in order to accept the private prescription as DRE, the Council needed evidence from his GP that drugs available on the NHS would not work or had excessively negative side effects for him.
15. Mr X told the Council his GP would apply a charge of £100 to provide a letter as requested by the Council. He said he was unwilling to pay this as he was aware the GP would not support his position.
16. The Council reiterated its position but offered to contact the GP itself to negate the need to pay for a letter. Mr X gave his consent for the Council to contact his GP.
17. The GP provided an opinion which did not meet the criteria the Council needed. The Council explained to Mr X that the GP had not said the medical cannabis was needed, and therefore it would not accept this as DRE.
18. Mr X provided an opinion from another NHS GP, which contradicted the first. This letter stated that as Mr X had not managed to get a benefit from traditional NHS medication, and was getting a benefit from medical cannabis, she would support him in continuing to engage with the private clinic.
19. The Council considered the second letter and decided that as it now had two contradictory opinions from NHS practitioners, it should discuss this with the second GP to better understand her rationale.
20. Mr X refused to provide consent for the Council to do this.
21. The Council has agreed for Mr X to be present for its discussion with the second GP, or to provide its questions to Mr X to email the GP himself. He declined to do this.
22. The Council remains of the stance it will not accept Mr X’s medical cannabis as DRE without further information and Mr X remains of the view the Council are wrong.

Analysis and findings

23. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong.
24. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decision.
25. I have considered the steps the Council took to consider the issue, and the information it took account of when making its decision.
26. Although Mr X considers the Council is being too obstructive, I am satisfied that it is taking appropriate steps to satisfy itself whether Mr X’s prescription is a disability related expense. It is entitled to do this. Further, the Council has been clear with Mr X as to why it wants to ask further questions and what those questions are.
27. There is no fault in how the Council has taken its decision and I therefore cannot question whether that decision was right or wrong.

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Decision

I find no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman