Summary: Mrs Y’s legal deputy complained on behalf of her estate that the Council failed to include various costs that should have been Disability Related Expenditure in a financial assessment. The Council also took too long to respond to the representative and failed to adequately explain its decision. To remedy this, the Council has agreed to pay £208 for avoidable additional costs and to include the cost of lift maintenance as disability related expenditure.

The complaint

1. Mrs Y’s representative, who acted as her deputy, complained on behalf of her estate that the Council failed to include various Disability Related Expenditure (DRE) in a financial assessment and delayed in responding to the representative’s emails.
2. The deputy said this led to unnecessary legal fees being charged and uncertainty over whether Mrs Y’s care could be afforded.

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The Ombudsman’s role and powers

3. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)

4. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended).
6. 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

7. I have used my discretion to investigate the Council’s actions back to its recalculation of Mrs Y’s contribution towards care in 2017. This is because the impact of this change only became apparent when Mrs Y’s deputy was appointed, queried the calculations and complained about them in 2019.
8. I spoke to Mrs Y’s deputy and made enquiries to the Council.
9. I have written to Mrs Y’s deputy and the Council with my draft decision and given them an opportunity to comment.
10. I have considered the comments provided before making this final decision.

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What I found

Background

11. Councils must assess a person’s finances to decide how much they should pay towards meeting their care costs. They should not reduce a person’s income below Income Support plus 25%. The Care and Support Statutory Guidance states that: after charging for care, a person must be left with enough money to pay for daily living costs such as rent, food and utilities. This is known as a minimum income guarantee.
12. If a person incurs expenses directly related to any disability he or she has, the council should take those costs into account, discounting them when assessing how much they can afford to contribute to their social care costs. These costs are called Disability Related Expenditure, or DRE. The financial assessment should set out exactly what the Council considers to be the person’s DRE. The council should not be inflexible in the costs it accepts. It should always consider the individual’s circumstances in deciding how much they should contribute towards the cost of their care.
13. The statutory guidance includes a list of items councils should consider when assessing DRE. The list is not exhaustive and councils should include any reasonable additional costs directly related to a person’s disability.
14. Examples of acceptable disability related costs include:
• extra heating costs above the average levels for the area and housing type;
• purchase, maintenance and repair of disability-related equipment.
15. The care plan may be a good starting point for considering what is necessary DRE. However, councils should be flexible. DRE should not be limited to what is necessary for the person’s care and support.

What happened

16. Mrs Y suffered from Alzheimer’s disease and had been receiving care for several years. The Council assessed her as having to pay towards some of her care costs. It disregarded certain DRE, reducing what she had to pay.
17. The Council introduced a new policy on DRE in April 2017. The Council reassessed DRE cases including Mrs Y’s from April 2017 onwards.
18. The Council decided certain of her costs including maintenance for a lift between the floors of her home, phone line rental and hairdressing were no longer eligible. This increased what Mrs Y had to pay.
19. The Council considered other expenses as still eligible for DRE including additional heating (gas and electric) and chiropody costs. This included extra heating costs above what a person without her health problem would need. The Council asked for evidence to confirm these expenses in July 2017. It says it sent generic information letters about the changes with the notice of this change of funding.
20. The Council’s case notes show it received the evidence for the additional heating costs in October 2017 and noted the family had not provided receipts for chiropody expenses.
21. The Court of Protection appointed a solicitor to act as a deputy for Mrs Y’s financial affairs in June 2017. The deputy was in contact with the Council about Mrs Y’s care costs between November 2018 and February 2019.
22. In February 2019, the deputy emailed the Council to dispute how it had considered Mrs Y’s DRE. They said the Council had not included some costs as DRE in Mrs Y’s financial assessment. The deputy chased the Council for a response three times in March and April 2019.
23. Having had no response for a further two weeks, the deputy complained to the Council in April 2019.
24. The Council acknowledged the complaint from the deputy and referred them to a manager in its adult social care team. The deputy then chased for a response three times in May and once in June 2019.
25. The Council responded in June 2019. It said it had reviewed Mrs Y’s DRE in April 2017. It explained under DRE Practice guidance the Council had not included Mrs Y’s utility bills and lift maintenance costs. This was because they did not “reflect the extra cost to the individual of meeting a particular need as opposed to the cost that anyone without a disability would incur in the course of daily life”. The Council apologised for its delay in responding to the deputy’s complaint.
26. The deputy replied, referring to the increased costs for Mrs Y’s heating bills because of her condition and maintenance costs for the indoor lift she used for carers to move her around her property. They explained that in their view these were DRE which the Council should have included. They said the costs of the maintenance for the lift, of approximately £400 per year, were directly related to meeting Mrs Y’s daily needs as a result of her disability. This is because if she did not have the disability, she would not need the lift. The deputy confirmed they would refer the matter to the Ombudsman.
27. Mrs Y died in late 2019.

Findings

28. The Council took too long to respond to Mrs Y’s representative’s emails. This was fault. It apologised for this but did not explain its failure to reply. This fault led to the deputy having to chase the Council on several occasions and so increased the deputy’s costs for Mrs Y’s estate to pay.
29. The deputy has provided their professional records to show the costs incurred as a result of chasing the Council for a response. This amounts to additional costs to Mrs Y’s estate of £208 which without the fault would not have been incurred.
30. When the Council reassessed Mrs Y’s DRE following the change of policy in April 2017, it decided to stop considering the cost of maintenance of Mrs Y’s lift as DRE. Its case notes do not refer to Mrs Y’s care and support needs. Its complaint response refers only generically, to her having costs anyone would incur. The Council did not show how it properly considered Mrs Y’s DRE or respond to Mrs Y’s deputy’s argument that these were additional costs specific to her care and support needs. This was fault.
31. We cannot say what the Council should consider as Mrs Y’s DRE. However, the Council failed to adequately explain its decision in respect of her circumstances, as required by its policy and statutory guidance.
32. In a draft version of this decision we recommended the Council reconsider its assessment of Mrs Y’s DRE from April 2018 to Mrs Y’s death in October 2019. The Council did this and found Mrs Y’s lift maintenance should have been included as DRE. It has agreed to pay Mrs Y’s estate for these maintenance costs.
33. However, I have not found the Council at fault for not including Mrs Y’s utility bills in her DRE. It correctly considered exceptional energy costs for heating, resulting from Mrs Y’s health in its DRE payments to Mrs Y.

Agreed action

34. To remedy the injustice caused by the fault the Council has agreed, within one month of the date of this decision:
• to pay Mrs Y’s estate £208 for the avoidable additional costs incurred by the deputy chasing the Council for a response to their enquiries; and
• to include the lift maintenance as DRE and to pay her estate the lift maintenance costs incurred from April 2017 until Mrs Y’s death.
35. Following Mrs Y’s death, the Council made two payments for care costs amounting to £1,990.63, which are repayable to the Council. It has been agreed that the Council can offset the payment for lift maintenance costs and the payment of £208 for avoidable additional costs against this amount.

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Final decision

36. I have completed my investigation. There was fault leading to an injustice, which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman