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Leeds City Council (18 010 383)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 28 Nov 2019

The Ombudsman's final decision:

Summary: Ms C complained about the way in which the Council assessed that she has to pay a financial contribution towards the cost of her homecare support. The Ombudsman found there was no fault in the Council’s decision to backdate her contribution to the date her benefits increased. However, there was fault in the way the Council dealt with some of the items she asked to be treated as Disability Related Expenses (DRE). The Council has agreed to accept one item as DRE and review another one.

The complaint

  1. The complainant, whom I shall call Ms C, complained to us that the Council has refused to treat some of her expenses as Disability Related Expenses (DRE). Furthermore, the Council also told her, following a financial assessment in June 2018, that she has to pay a backdated contribution towards her care package from June 2017 onwards.
  2. Ms C also complained that she has unmet needs; the Council does not allow her flexibility in the way she wants to use her direct payments.
  3. Ms C says the above events have cause her distress and exhaustion, as a result of which she has experienced a considerable decline in her health. She cannot sleep, is very tearful, and her anxiety and OCD have become more difficult to manage.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. If we are satisfied with a council’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

  1. I have considered the information Ms C and the Council have provided to me and carried out a telephone interview with two staff members of the Council. I shared a copy of my draft decision statement with Ms C and the Council and considered any comments I received, before I made my final decision.

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What I found

What should have happened?

  1. The Care and Support Statutory Guidance states that:
    • Where a council takes disability-related benefits into account, it should allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs not being met by the council.
    • However, not all costs are considered eligible. For instance, if a client chooses to buy services when there is a cheaper alternative that meets the need, or if it is something provided by the NHS for free. Councils are entitled to ask for medical evidence if and where needed to help them determine if an item is a necessity or a preference.
  2. The guidance includes a list of items that councils should consider when assessing disability-related expenditure. The list is not intended to be exhaustive and councils should include any reasonable additional costs directly related to a person’s disability. The list includes some of the following items:
    • additional costs of special dietary needs due to illness or disability (the person may be asked for permission to approach their GP in cases of doubt)
    • any heating costs, or metered costs of water, above the average levels for the area and housing type
    • reasonable costs of basic garden maintenance, cleaning, or domestic help, if necessitated by the individual’s disability and not met by social services
    • purchase, maintenance, and repair of disability-related equipment
    • internet access for example for blind and partially sighted people
    • other transport costs necessitated by illness or disability, over and above the mobility component of DLA or PIP, if in payment and available for these costs.
  3. Disability related expenses are any extra costs a person may have due to their disability. As such, the Council has to consider which of Ms C’s expenses are different or higher as compared to the wider population, and to what extent they are different or higher because of her disability. In assessing whether certain expenses are DRE, councils should also consider issues such as to what extent the item / expenditure will: contribute to achieving the outcomes in Ms C’s care plan, is reasonable and necessary, and will contribute to increasing Ms C’s independence.

What happened?

Disability Related Expenses

  1. Ms C’s GP sent a letter to the Council in November 2018. It said that: Ms C was in her 30s and has severe Chronic Fatigue Syndrome (CFS/ME), Obsessive Compulsive Disorder (OCD), Generalised Anxiety Disorder (GAD), and Irritable Bowel Syndrome (IBS) with associated food issues. He said Ms C was bedbound for approximately 22 hours a day. She would often not have any energy to engage in daily living tasks and needed everything delivered to her house.
  2. Ms C says she is unhappy with the way the Council has dealt with her disability-related expenses, for the following reasons:
    • She experienced discrimination, because the Council compared her to ‘the wider population’ and failed to consider her logical well-reasoned arguments about her expenses.
    • The Council said some of her disability related expenses should be paid from her daily living allowance.
    • The Council failed to consider the impact it would have on her wellbeing if she would not be able to have these items/services.
  3. The Council says Ms C has an income of £336.80 per week, which includes a mobility benefit of £61.20 a week. The Council’s financial assessment in 2018 calculated that Ms C needs to contribute £91.68 a week towards the cost of her care and support. This leaves her with £245.12 per week. Ms C’s rent and Council Tax are covered by means tested welfare benefits. The Council is therefore confident that her charge is affordable.
  4. Ms C told me she is unhappy with the way the Council has dealt with the following expenses:
  5. The cost of gardening:
    • The Council says that: It provided free of charge hedge cutting at Ms C’s property, and did not charge for grass cutting, until Ms C installed security fencing that prevented access to her garden. Maintaining additional bushes and shrubs planted in the garden are the responsibility of the tenant. It does not usually treat the costs for large, physically demanding jobs (like pruning large bushes / trees) as a disability-related expense. This is because it is likely these jobs need professional assistance, regardless of a person’s disability.
    • On appeal, the Council decided in September 2018 to allow the following as DRE: 1) a weekly gardening allowance of £20 every two weeks for 35 weeks per year; 2) £50 per year towards the cost of pruning trees and shrubs.
    • After discussing this with Ms C, she acknowledged that the amount of DRE the Council has allowed now, is in line with the amount she asked for.
  6. The cost of landscaping the garden and decking:
    • The Council says that: Following an OT assessment, the Council carried out adaptations to the front and the back of Ms C’s property as part of a Disabled Facilities Grant (DFG). The Council did not provide landscaping and gardening as part of the DFG. Ms C has an outside area, which is a good-sized enclosed garden that is mainly laid to lawn.
    • Ms C told me that if she would like to access her garden, she will need to pay to have it landscaped to put it on a level with the ramping. Installing decking will make her garden level access, which means she would be able to get out in her wheelchair.
    • My assessment: The Council should have visited Ms C’s property to assess her plans and come to a view if the cost involved (£4,270) meets the criteria of being a DRE.
  7. Additional costs of food due to dietary needs:
    • Ms C says that the weekly cost of her food shopping is significantly higher, due to her disabilities.
    • Ms C’s GP sent a letter to the Council in November 2018, which said:
        1. Ms C has IBS with associated food issues. The GP listed eight food intolerances, in addition to intolerances to several fruits and vegetables.
        2. Ms C provided a list of alternative food items she needs to buy, which the GP was ‘happy to confirm’. It included: organic food, ready to cook meals / precooked or prepacked items, takeaways (when Ms C is too weak to cook), and dietary supplements.
        3. A dietician would not be able to add anything to this.
    • Ms C has provided a long list of food items she said she needs, and how much they cost. Ms C says these are specialised food items that are at least double the cost of a standard item (and some even seven times). The list of 14 items came to £77 a week and Ms C wanted the Council to treat 2/3rd as DRE. Ms C also supplied three weeks of her shopping receipts. However, she said the Council rejected these, saying there are cheaper places to shop. Ms C said she has to shop at X, because they are the only online supermarket that stock the wide range of alternative foods she needs. All these factors lead to higher costs, none of which the Council has accepted.
    • The Council has said that:
        1. While it has received a statement / letter from Ms C’s GP about her intolerances, it needs to clarify some of the information with her GP. In addition, the Council needs further confirmation from a qualified dietician about Ms C’s food intolerances, suggested ingredients and meal plans.
        2. Once it has this information, it will be able to come to a view to what extent there are cheaper options available for Ms C to meet her nutritional needs and to what extent it should treat Ms C’s additional food expenses as DRE.
    • Ms C has not given permission to the Council to have direct contact with her GP. Instead, she has offered for the Council to submit a list of questions via her to her GP. However, the Council has reservations with regards to this and told me it will need to discuss issues directly with her GP.
    • My assessment: With reference to paragraph nine, the additional costs of special dietary needs due to illness or disability may be considered as DRE. However, a council may ask for permission to approach the GP where needed. Ms C has asked the Council to consider an amount of £60-70 a week as DRE. This is a significant amount. I found the Council was not at fault for concluding it needs more information and clarifications from the GP and a qualified dietician before it can come to a final decision on this.
  8. Health Related Costs:
    • Ms C has told the Council that:
        1. She needs to have ME management sessions (around fatigue and pain management) at Fatigue Clinic X, which are £165 per session. Ms C previously received such sessions for free at her local ME Clinic. However, she was not happy with these sessions and felt the sessions made her condition worse. Ms C says she has been unsuccessful in trying to get the NHS to fund sessions at the Fatigue clinic X.
        2. Regular massage sessions (at £40 a week) would help relieve her symptoms and improve her mobility. Her GP has confirmed in the letter of November 2018 that these are necessary, that it is not covered on the NHS and that she would be unlikely to gain funding if she applied.
    • The Council has said that:
        1. Managing diagnosed health conditions is the responsibility of the NHS and not the Council. The Care and Support Statutory Guidance is clear that essential and necessary costs relating to a medical condition should be met by the NHS. The guidance also says a council should consider, as part of DRE, if a cheaper alternative is available.
        2. Ms C can attend her local ME clinic for free on the NHS. Ms C’s request to change clinics is a dispute between her and the NHS about the quality of the local service, compared to the quality of a clinic somewhere else. If a client is unhappy with the service provided by their local clinic, it is not appropriate for the Council to allow the cost of attending another clinic as DRE. It would therefore not be reasonable for the Council to allow for such costs. If Ms C is unhappy with the decision by the NHS, she can make a complaint to the Health Service Ombudsman.
        3. If Ms C feels that massages to manage her condition are essential for the treatment and management of her long-term chronic condition, she should talk to her GP or specialist about NHS funding. Ms C has not provided evidence yet, whether the NHS has considered her request.
        4. In addition, the Council would need to discuss with Ms C’s GP how the massage would result in (social) benefits to Ms C, if the GP has considered alternatives such as physiotherapy etc. If the NHS decides not to fund it, she can make a complaint to the Health Service Ombudsman.
    • Ms C has told me that, due to her condition and her ongoing complaints with the Council, she feels she does not have the energy left to complain to the Health Service Ombudsman.
    • My assessment:
        1. The NHS has to consider if something has health benefits, whereas the guidance on DRE states that a council has to consider if something is a necessary and reasonable additional cost directly related to a person’s disability. There is also a duty for the NHS and the Council to work together.
        2. The Council is correct when it says that a service user has to explore if a particular type of treatment is available for free on the NHS. Where needed, the Council should liaise with the NHS to discuss this.
        3. The Council is also correct when it says that, if the NHS has decided that it will not fund a particular treatment, the service user should go through the relevant NHS complaint/appeal process.
        4. However, where a local NHS has decided (at the moment) that it will not fund a particular treatment, a council will need to consider whether the treatment meets the criteria of being a DRE. As such, it is likely that a council needs to get information from relevant health professionals to understand why the NHS turned down the request and what benefits the treatment would have, before making a decision.
        5. For instance, with regards to Ms C’s request to go to Fatigue clinic X, instead of her local one, the Council would need to understand: how the available treatments differ, what additional benefit Ms C would have from attending clinic X, why the NHS would not fund this, and subsequently decide if this is a necessary and reasonable additional cost directly related to her disability, for which there is no reasonable cheaper alternative. However, to consider the above, the Council would need Ms C’s permission to discuss this with relevant health professionals.
  9. The cost of various electronic equipment:
    • Heart rate tracker (£0.41 a week)
        1. Ms C says it is important for ME patients to keep their heart rate down. She therefore bought a heart rate tracker to help her with pacing when she does an activity.
        2. The Council said it would only consider this further, if it receives information from her GP why it is essential for Ms C to pace herself and why a tracker is not provided by the NHS.
        3. My assessment: If Ms C would like the Council to consider this further, she will need to provide the Council with permission to discuss this with her GP.
    • Audible Books (£2 a week)
        1. Ms C says that, due to her fatigue, it is at times easier for her to listen to books than read them. She was signed up to a service (Audible - Amazon: £8/month), and it was this cost that she wanted the Council to treat as DRE. ‘Audible’ is not free for Amazon Prime users, as claimed by the Council. This cost is in addition to the cost of buying normal books. Ms C says she prescribed to this service due to her condition, which is why it should be treated as DRE.
        2. The Council says that it is clear from the information provided by Amazon that the costs of buying audio books is similar to the costs of buying physical books.
        3. My assessment: If Ms C believes the total amount she actually spends on reading and listening to books (including audio/kindle books) is more than she would have had to spend if she could read all the books, she needs to provide that evidence to the Council to consider.
    • High quality hair dryer
        1. Ms C says that, at times, her carers have to leave before her hair has dried. As she is very sensitive to cold, she can become unwell from sitting with wet hair. Ms C said she bought a specific hairdryer, because of its light weight and quick drying time. As she suffers from muscle weakness, this specific hairdryer enables her to dry her own hair when needed. Her GP confirmed in his letter that this fast-drying hairdryer is light enough to enable her to lift it and dry her hair independently.
        2. Ms C has since told me she will tell the Council that it can reduce her care package, because the hair dryer will save time.
        3. The Council says that, while it does not doubt the efficiency of the product, it is a personal choice. There are other light weight blow driers available that are much cheaper. They may not dry her hair as quickly, but the Council has not received any medical evidence to determine that Ms C will be at risk if her hair takes a few minutes longer to dry. In addition, Ms C receives support with drying her hair from her carers.
        4. My assessment: I did not find fault with the way in which the Council considered this. The Council considered Ms C’s request and concluded it did not meet the DRE criteria. There are much cheaper light weight options available and it has not received an explanation from her GP why a quick drying time is essential. In addition, Ms C’s needs for hair drying can be met through her care package.
    • HEPA Roomba Filter hoover (£1.71 a week):
        1. Ms C and her GP have said the Robotic HEPA filter hoover helps her to manage her allergies. It also provides her with more independence, because she does not need her Personal Assistant (PA) to hoover her house. This can in turn reduce her support package, as the PA will now only need to hoover once a week. Ms C’s hoover was £500 and she said it was the cheapest one she could find with a HEPA filter.
        2. The Council said it would consider any reasonable household cleaning costs as a disability related expense, because of Ms C’s disability and the fact she lives alone. It would be willing to make an allowance for the difference in the costs between a conventional vacuum cleaner and the vacuum cleaner Ms C needs, spread out over 10 years (500 weeks). However:
          1. Ms C chose to buy a very expensive Robotic HEPA filter hoover for £500. A simple search of the internet showed it would be possible to buy a robotic cleaner with a HEPA filter for around £190 to £210. It sent the relevant link to Ms C as evidence.
          2. An average-priced quality vacuum cleaner is £265.00.
          3. As such, the Council decided not to treat the cost of the hoover as DRE, because Ms C could have bought a hoover that would not have been more expensive than an average-priced quality vacuum cleaner.
        3. Ms C says the average person on benefits would not spend £265 on a normal hoover. If she would not have had a disability, she would have bought a very cheap hoover. Her last hoover cost only £40. As such, she has had to spend a lot of more money on a suitable hoover that increases her independence due to her disability
        4. My assessment: The Council concluded that Ms C could have bought a cheaper robotic hoover for around £200, which would have met her specific needs. However, I do not agree with the high price used by the Council (£265) as the cost of a normal hoover. Considering the prices on the internet, an amount of £125-150 would have been more appropriate. This will only result in a difference of £50-£75 and an increase in DRE of £0.15 a week.
    • Dishwasher and associated electrical work/plumbing (£0.68 a week)
        1. Ms C says she had to buy a dishwasher, because she cannot wash her dishes herself. She would not otherwise have bought this. She knows this support can be provided by her PA. However, she bought the dishwasher to increase her independence. As a result, if needed, the Council can reduce the time allocated for the PA to wash her dishes from her personal budget.
        2. In his letter, the GP said the dishwasher would help Ms C with household chores and maintaining her independence.
        3. The Council said that: a dishwasher is not an essential item, and therefore the additional plumbing / electrical work will not have been needed to accommodate this. Ms C is not strong enough at present to (un)load a dishwasher herself (she reports being bedbound most of the time), and it will not result in a significant increase in her independence.
        4. My assessment: I did not find fault with the way the Council considered this. The Council considered Ms C’s request and concluded it did not meet the DRE criteria. Ms C’s needs for support with washing dishes is met through her care package. In addition, the records indicate she has not been strong enough to (un)load it and it would hardly increase her independence. If this will change, she can ask the Council to review its decision.
  10. Cost of a specialist bed (£0.48 a week):
    • Ms C says she bought new furniture when she moved into her current property. This included a new bed. However, when the OT visited her, the OT told her she would need to buy another higher bed. She therefore had to buy another new but higher bed. Ms C says she only had to buy this second new bed (shortly after she had bought another new bed) because of her disability. As such, this additional expense should be considered as DRE.
    • The Council said that when a bed needs to be made higher, this can be achieved free-of-charge by providing bed raisers. Ms C declined this option at her OT assessment in November 2017. Ms C felt that a hospital bed would be more suitable, but she did not meet the criteria for this. The OT did not tell Ms C to buy a new bed.
    • My assessment: I did not find fault with the way through which the Council considered this. The Council concluded that an appropriate cheaper (free) alternative was available to Ms C. If Ms C believes the bed raiser did not meet her needs, she should make a complaint about that to the Council / OT service. If the outcome of that complaint finds that Ms C had no other option than to buy another bed to meet her needs, the Council should review its decision.
  11. Talking therapy:
    • Ms C told the Council that she needed talking therapy, to assist her with her mental health issues and isolation. She says this isn’t available on the NHS as she needs home-based sessions. Sessions are approximately £35 every two weeks. Her GP has told the Council that this is “Emotional support is essential for an isolating illness like ME”.
    • In addition, Ms C says that if the Council does not treat this as DRE, it should consider allowing her to use her Direct Payments to pay for this. The therapy sessions link in with her identified need for social interaction, reducing her social isolation and increasing the prospects she may be able to start socialising outdoors again.
    • However, the Council has said that:
        1. At the time of the assessment, Ms C had not yet started with this therapy. As such, there was no expense to consider yet. Alternative provision is available on the NHS for those who need home-based sessions. As the GP deemed this therapy essential, and provision is available free on the NHS, there is no DRE. A local hospital confirmed that the NHS simply needs a referral from Ms C’s GP, and they will assess her for the most appropriate form of therapy to meet her needs.
        2. Regarding the need for social interaction and reducing isolation, Ms C has four hours per week in her support plan to support her with accessing the community / social inclusion, or befriending support. Ms C can also use this for piano lessons at home.
    • My assessment: I did not find fault with the way through which the Council reached its view. It has said that Ms C should first explore free alternatives with her GP through the NHS. The amount allocated in Ms C’s personal budget for socialising can therefore be used for other things related to socialising with people in person.
  12. Gym equipment:
    • Ms C told the Council she wanted to buy gym equipment to help her with her rehabilitation.
    • However, the Council said a Physiotherapist said that Ms C did not have the strength to use such equipment. Ms C should therefore discuss any such equipment with the Physiotherapist first.
    • My assessment: There was no fault. The Council has advised Ms C that if she wants to consider buying gym equipment, she should first discuss the need for this with a Physiotherapist.
  13. Increased heating costs:
    • Ms C says her GP has confirmed that she has temperature dysregulation and therefore increased heating costs. She said she also has increased electricity costs, because she has to be at home all day, where she uses her tv / laptop / phone etc. The Council should therefore accept her full gas and electricity bill as DRE.
    • The Council has explained to Ms C that it would only consider the cost of electricity or gas if her bills are above the national average for a one-person household. However, this is not the case.
    • My assessment: There is no fault with the Council’s conclusion that it would only have to consider any electricity / gas costs that are above average.
  14. Security fencing (£1,600):
    • Ms C says:
        1. She suffers from OCD and General Anxiety Disorder and asked the Council to put up security fencing to help her manage this. She says the fence would also help her with her privacy and dignity, so she is not visible from the street.
        2. When she moved into her house, her garden was completely open, accessible from the front of the house and from the back. People would walk through and groups of youths would play in her garden and running from the front to the back with scooters on a regular basis. As she is a vulnerable person, this made her frightened and anxious. She especially worried at night that people could have such easy access to her garden. She also felt vulnerable living and sleeping on the ground floor.
        3. She asked the Council on numerous occasions for fencing, which it refused. She is extra vulnerable, nervous and anxious and the fencing has helped her to manage this.
    • The GP said in his letter, that an enclosed garden would give Ms C privacy, which would help to manage her OCD.
    • The Council has said:
        1. There is no need for security fencing. The area where Ms C lives is a quiet area where elderly people live. There are no records of anti-social behaviour in the street she lives.
        2. While Ms C may feel more insecure due to her vulnerabilities, the cost of installing measures to feel more secure (fencing, CCTV etc) also apply to the wider population. This is therefore not an “additional” cost “entirely” related to her disability. It was her choice to put up fencing to feel more safe, secure and less vulnerable. These are the same reasons many other people in the wider population have for installing security measures.
    • My assessment: The Council has considered Ms C’s request and, while it can understand that she may want to put up fencing, it is not a cost that meets the criteria of a DRE, for reasons explained above.
  15. High speed broadband / Special TV subscriptions / Amazon Prime / game console / computer games:
    • Ms C says that when her carer leaves, she is alone all day. As such she needs to do things to entertain herself and to socialise online. She says that a person coming to visit her (a ‘befriending service’) would not be suitable for her. She therefore:
        1. Uses her phone a lot to stay in touch with friends.
        2. Uses her game console to socialise through playing online games
        3. Watches movies and series through Amazon Prime etc
        4. Needs a fast internet connection to facilitate this.
    • The Council considered Ms C’s request and said there has never been a greater choice of free-to-air television channels and radio stations. The cost of pay-to-view services are therefore not allowed as a disability related expense. In addition, Ms C has Amazon Prime who offer a large range of films. Online games are not beneficial for socialising and can be socially harmful too. Ms C needs to work towards socialising through normal channels and the Council can talk to her GP about that. Furthermore, the equipment mentioned above can work adequately with a normal internet connection, the cost of which is a general cost of living that most households have.
    • My assessment: The Council has considered Ms C’s request and concluded it is a choice rather than necessary expenditure. It has offered to support Ms C with exploring alternative means to meet her needs for social contact.
  16. Noise cancelling headphones (£1 a week) and earplugs
    • Ms C said that noise sensitivity is common in ME patients. Reducing noise is therefore beneficial for wellbeing. At the moment, because she is bedbound, she is wearing earplugs due to her noise sensitivity. Ms C says she is putting money aside for headphones (£329) that cancel out noise. This is something Ms C says she will need when she is well enough to leave the house.
    • The Council says that it would need to discuss with Ms C’s GP to find out more about Ms C’s noise sensitivity, the impact noise has on her, and why headphones and ear plugs are so important for her. The headphones are not needed now, because Ms C is not planning on leaving the house. Once she is planning and ready to leave the house this can be reviewed (after GP consultation)
    • My assessment: The Council has considered Ms C’s request and concluded it needs to have further discussions with her GP before it could come to a final decision.
  17. CBD Oil:
    • The letter from the GP said this is essential. However, the GP did not explain why this product is essential and why it is therefore not provided on NHS prescription.
    • My assessment: The Council has considered Ms C’s request and concluded it needs to have further discussions with her GP before it can come to a final decision.
  18. Extra cost of clothes:
    • Ms C has said that the clothes she wears in bed suffer more from wear and tear than normal. They also need to be made from natural fibres.
    • However, the Council has said that she currently does not have to buy such things as clothes to go outside (because she stays indoors) and she wears less normal clothes (because she is mainly bedbound). As such, it has not seen evidence that her total bill for clothes is higher than compared to the wider population.
    • My assessment: I did not find fault. The Council considered the total cost Ms C would have to spend on clothes. It came to the conclusion this would not be more than the general population. If Ms C believes her total bill on clothes is higher, and this is due to her disability, she needs to submit evidence to the Council to consider.

The backdated contribution

  1. Ms C’s first financial assessment took place in April 2017. The outcome of this assessment was that she did not have to pay a contribution to the cost of her care. At the assessment, Ms C said she was applying for Personal Independence Payment (PIP).
  2. Ms C signed a direct payments agreement, which said that she should immediately tell the Council when there is a change in her financial circumstances. The agreement said that if she would be awarded any extra welfare benefits, the Council would backdate any increased contribution to the date her financial circumstances changed. This is a standard agreement and is in line with the Care & Support Statutory Guidance.
  3. Following the financial assessment in April 2017, Ms C’s financial situation changed. The amount of benefits she received increased in June 2017. However, it took until November 2017 before Ms C told the Council that she had received an increase in her benefits. The change in circumstances meant that Ms C’s income had increased. In order for the Council to be able to determine to what extent this would have an impact on the weekly contribution she would have to pay for her care support, the Council needed to carry out a new financial assessment.
  4. The Council agreed with Ms C that it would visit her in January 2018 to review her financial assessment. Ms C asked to reschedule the visit to April 2018 because she said she wanted to meet with her advocate before the assessment. However, her advocate would be on leave until March 2018. The Council says it advised Ms C that it would backdate any contribution towards her care to June 2017.
  5. Ms C postponed the meeting on two more occasions. She told me her advocate left the organisation and she was waiting for a new one to be allocated. When she got a new advocate, the advocate went ‘off sick’ and did not respond to her for 6 weeks. The agency subsequently realized the advocate they allocated was not suitable, so they allocated another one two weeks before the review date. In the end, the meeting took place in June 2018, at which Ms C was supported by her personal assistant. Ms C says:
    • She did not have appropriate support at the assessment, which was a failure by the Council and the advocacy service.
    • Her carer was unable to provide appropriate support as she did not know anything about DRE.
  6. However, I have not seen evidence that Ms C asked the Council, before the financial assessment took place in June 2018, to arrange a different advocate who would be more knowledgeable about financial assessments and DREs.
  7. As a result of Ms C’s increase in her benefits income, the financial assessment in June 2018 concluded she would have to pay a contribution towards her care. Ms C said the Council initially told her the assessed contribution would only start from June 2018 onwards. However, the Council subsequently told her it would be backdated to June 2017, when the increase in her benefits occurred. As a result, Ms C was assessed as having to pay £86.93 per week (£4,321.66 between June 2017 and June 2018).
  8. The Council also advised Ms C in June 2018 that she should claim for additional benefits (the Severe Disability Premium). When the DWP subsequently awarded this, it increased Ms C’s income further. The DWP also decided to backdate her increase in benefits to the date she qualified for PIP, which was 10 April 2017. It paid her £3,789 as a result. The Council therefore decided to also backdate the resulting increase in her contribution to June 2017. It explained to Ms C on 17 August 2018 that: “the level of financial assistance you qualify for will change with effect from 24/06/2017 because this is the date you started to receive chargeable adult social care services. The law says that financial assessments must reflect an individual’s income from benefits as it should have been claimed for a past period, even if it was not claimed. The DWP have backdated your severe disability premium to the date you started to claim PIP and I am pleased that we have been able to support you to claim this extra money”.
  9. The Council says that Ms C has not been left in financial hardship because of this decision. It told her that she needs to pay £5,675.05 in total to bring her client contributions in her direct payment account up-to-date. This amount is less than the extra income she has received since June 2017 due to increases in her benefits. In addition, Ms C has savings that are significantly more than the outstanding backdated contribution.
  10. Ms C told me that, because of the money she owed the Council after the financial assessment in June 2018, the Council decided to recover this by: stopping any further Direct Payments going into her account between August 2018 and March 2019. Ms C said the Council did this without letting her know first and it refused to discuss this with her. This lack of information and willingness to engage was particularly distressing for her, due to her very high levels of anxiety and panic. However, Ms C said this did not result in a reduction in her care support, because she had a large amount of unused direct payments in her account and she used the balance of that to pay for her support.
  11. The Council says that, because it calculated in June 2017 that Ms C should pay more towards the cost of her care (between June 2017 and June 2018), it meant the Council had contributed too much during this time. As such, it had to ‘recover’ (balance out) the amount it had overpaid into Ms C’s direct payment account during that period. This meant, it stopped paying its contributions into Ms C’s account, until the overpayment was rectified. During this time, Ms C continued to have a sufficient amount of funds to pay for her care support. Once the overpayment was addressed, the Council’s payments resumed. The Council discussed this with Ms C on 15 August 2018. The record says: “Ms C advised that there is over £8k in the account, so she is aware she will need to repay most of it. She also confirmed that she is in contact with officer A, so I confirmed that this will be best person to address her query about change to contribution”.
  12. Ms C told me that, because she was unable to pay the assessed contribution, she decreased her support hours to try and bring the cost down to a level she could afford. She eventually reduced it to 2 hours a week by November 2018. This was very distressing for her and the lack of support with personal care and around the house was difficult to cope with.
  13. The Council told me that Ms C reduced the hours because she said she could not cope with engaging with her PAs. She did not tell the Council she reduced her hours because she could not afford it. The Council has carried out a financial assessment that concluded how much she can afford. In addition, Ms C has received an additional income from her benefits of £8,832.04, of which she only has to pay the Council £5,675.05. Ms C also has a significant amount in savings. She was therefore not unable to pay the assessed contributions.

Assessment

  1. I am unable to conclude that Ms C did not understand the direct payment agreement she signed at the time, or the basic principle that if there would be a change in her income she would need to inform the Council. Ms C eventually told the Council in November 2017; she was aware this could have an impact on the contribution she may have to pay. The Council tried to arrange a financial assessment as soon as possible to determine what the impact would be for Ms C. However, this had to be postponed on several occasions. I did not find fault with the Council’s decision to backdate Ms C’s contribution to the moment her benefits income increased.
  2. Ms C’s benefits further increased after June 2018, which was backdated by the DWP to April 2017. For reasons explained above, there was no fault by the Council for its decision to backdate this as well.

Ms C’s Personal Budget / Direct Payment

  1. The records state that Ms C told the Council in July 2018 that her care package was working well, and she did not want to discuss anything at present.
  2. In September 2018, Ms C asked the Council for a review of her care. The Council allocated her case to a social worker in October 2018. Ms C advised the social worker in December that she was now well enough for the visit to take place.
  3. Ms C discussed the following with the social worker:
    • Her care support consists of three hours of carer support, Monday to Friday. However, Ms C only uses two hours a day, because she finds it too exhausting if a carer is at her home for more than that. Ms C also said that she did not have support at weekends, as it allowed her to have a break and recover from the care received on weekdays.
    • Ms C said that most of the time, her carers are cooking or making food. However, she found this very exhausting. She therefore asked if it would be possible to spend the direct payments on a meal delivery service instead, which would help her to live a more independent life. However, the Council has said that: while there may be nothing specific in the legislation or guidance that prevents the use of Direct Payments to buy prepared meals, everyone has to buy food and an allowance is already made in the cost of living allowance (the Minimum Income Guarantee of £151.45 per week). Ms C can use carer support to cook seven days per week, but she chooses not to. Food costs should be met within the cost of living allowance. Allowing food to be bought through a personal budget, in addition to having a living allowance to buy food, would be allowing for food costs twice.
    • Ms C asked if she could use her direct payment to buy things to occupy her at home. Ms C suggested she could buy films etc. However, the Council did not allow this.
    • The Council has allocated an amount that is equal to four hours of carer support a week, to use for social activities. However, Ms C said she cannot go out of her house to socialise at the moment, because of her condition. She therefore asked if she could spend this on video games (in which one interacts with other players) or piano lessons. The Council has told me that it did not allow Ms C to use these funds on video games, because the funds should be used for more appropriate ways to meet her need for socialising. However, the Council has agreed Ms C can use the money for piano lessons at home.
  4. Ms C subsequently told her social worker that she wanted to wait with discussing her care plan further, until after the Ombudsman had made a decision on her complaint.

Assessment

  1. A direct payment allows a service user to organize their own care support, giving them more choice, flexibility and control on how to arrange it. However, a council still needs to assure itself that the funds are spent appropriately. A council must be satisfied that the direct payment is being used to meet the care and support needs set out in the support plan.
  2. The Direct Payment agreement says that it cannot be used to buy food and the Council has explained why. I have found no fault with this.
  3. Furthermore, the Council has considered Ms C’s request to use part of her direct payments for buying games and films. The Council told Ms C that it would not allow this expenditure, but I did not see evidence that the Council had explained this decision to Ms C properly at the time, with reference to her support plan. This was fault.

Agreed action

  1. I recommended that, within four weeks of my decision, the Council should:
    • Visit Ms C’s property to assess her plans and come to a view if the costs involved (£4,270) meet the criteria of being treated as a DRE in the financial assessment.
    • Add the amount mentioned in Paragraph 19 (hoover) to Ms C’s DRE
  2. The Council has told me it has accepted my recommendations.
  3. There were several items above where the Council said that once it has received more information and evidence, it could result in a review of its decision. However, this is only possible with Ms C’s permission.

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Final decision

  1. For reasons explained above, I found there was fault with regards to the way in which the Council dealt with three DRE items. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case.

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Investigator's decision on behalf of the Ombudsman

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