Summary: We will not investigate Mr X’s complaint about care charges for his mother. There is not enough evidence of fault by the Council and further investigation would not lead to a different outcome.

The complaint

1. Mrs Z is the mother of Mr X. Mr X complained on Mrs Z’s behalf that the Council:
• refused to apply the mandatory Disability Related Expenditure (DRE) of £138.56 per week to Mrs Z;
• wrongly issued an invoice of £1,160.52; and
• continued to pursue unlawful charges for Mrs Z’s care.
2. Mr X said these issues caused financial strain and emotional distress, which he believed contributed to Mrs Z’s hospitalisation. He wanted the Council to:
• cease all debt recovery;
• apologise;
• apply the mandatory DRE and backdate it retrospectively;
• cancel the invoice of £1,160.52;
• refund any identified unlawful charges and overpayments;
• arrange for a senior officer to carry out an internal governance review; and
• provide significant financial compensation to Mrs Z and himself.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:
• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X complained to the Council regarding the matters in paragraph one.
7. 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 not charge more than the cost it incurs to meet a person’s assessed eligible needs.
8. People receiving care and support other than in a care home need to keep a certain level of income to cover their living costs. Councils’ financial assessments can take a person’s income and capital into consideration, but not the value of their home. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by national government and reviewed each year. A council can allow people to keep more than the MIG. (Care Act 2014)
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. 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.
10. The Council considered Mr X’s concerns and responded. It explained it had included the relevant income in its financial assessment and applied the correct MIG for Mrs Z’s circumstances.
11. It considered the evidence provided by Mr and applied DREs regarding:
• additional expenditure on food;
• home adaptions;
• additional laundry costs; and
• continence pads.
12. The Council requested further evidence from Mr X to support his request for additional items to be included.
13. 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, regardless of whether you disagree with the decision the organisation made.
14. I have considered the steps the Council took to consider the issue, and the information it took account of when responding to Mr X’s concerns. There is no fault in how it took the decision and I therefore cannot question whether that decision was right or wrong.
15. It is open to Mr X to provide the Council with the additional evidence it requested for its consideration. Further investigation by the Ombudsman would not lead to a different outcome.
16. Although Mr X disagreed with the Council’s position, disagreement does not remove liability for outstanding care costs. The Council confirmed its position and sought payment for the outstanding costs. Payment was not made so the Council escalated and pursued recovery in line with its processes.
17. Whilst we consider it good practice for debt recovery to be placed on hold whilst the Ombudsman reviews a complaint, there is nothing in law to say a Council cannot pursue recovery, and we cannot require them to do so. Therefore, there is not enough evidence of fault by the Council to investigate this matter.

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Final decision

18. We will not investigate Mr X’s complaint because there is not enough evidence of fault by the Council and further investigation would not lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman