Summary: The Council was at fault for not consistently applying some items of Disability Related Expenditure to Ms Y’s care costs, meaning her care costs were higher than they should have been. The Council has provided a suitable remedy to the injustice caused to Ms Y. The Council was at fault for not properly explaining why certain items were not considered Disability Related Expenditure. The Council has agreed to remedy the injustice caused.

The complaint

1. Ms X complains the Council failed to include various Disability Related Expenditure when assessing her daughter, Ms Y’s, care costs. Ms X says as a result Ms Y’s care costs are too high.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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)
5. 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

6. As part of this investigation I considered the complaint from Ms X and the response form the Council. I spoke to Ms X over the telephone about the complaint and considered the information she provided. I made enquiries to the Council and considered the response received.

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What I found

Law and guidance

7. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person’s income below In-come Support plus 25%. The Council can take a person’s capital and savings into ac-count subject to certain conditions. If a person incurs expenses directly related to any disability he or she has, the Council should take that into account when assessing his or her finances. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)
8. The Care and Support Statutory Guidance (the Guidance) sets out how councils meet the terms of the Care Act 2014. The Guidance says a person should not pay for care and support out of their capital if they have less than £14,250. Councils should also discount any DLA mobility component a person receives when assessing their income.
9. Disability Related Expenditure (DRE) are items of expenditure a council can deduct from a person’s income before deciding whether a person can afford to contribute to their social care costs. Councils must take DRE into account when assessing a person’s finances. The financial assessment should set out exactly what a council considers to be DRE.
10. If a council takes a disability benefit into account, they must also assess DRE in a financial assessment.
11. Examples of acceptable disability related costs include:
• extra washing or special washing powder and conditioner for delicate skin
• special diet
• special clothing or footwear (or extra wear and tear)
• additional bedding
• extra heating costs
• Internet access
• any care that social services do not meet
• buying and maintaining disability-related equipment
• any transport costs (both for essential visits to the doctor or hospital, but also to keep up social contacts).
12. The Guidance allows councils to accept other costs as DRE. Councils should consider any reasonable extra costs directly related to a person’s disability.
13. The Guidance also allows councils to disallow certain items, where a reasonable alternative is available at a lesser cost.

The Council’s guidance on DRE

14. Essex County Council has practice guidance to support its assessments of DRE. It is up to social workers to decide the existence of a DRE. The finance team then decides how much this costs.
15. The Council may not allow items to count as DRE where they are available at a lesser cost.
16. The Council’s practice guidance lists items which it should and should not normally accept as DRE. It lists physiotherapy and other therapies as items not normally considered DRE as these are available on the NHS.

What happened

17. Ms Y is disabled and uses a wheelchair. She lives alone and needs the support of carers daily.
18. The Council brought in a new policy for DRE in April 2017. In February 2017, the Council completed a financial assessment of Ms Y’s care costs and decided from April 2017 she would have to pay £97 each week towards her care. The assessment showed the Council included DRE for council tax, clothing/bedding, maintenance of Ms Y’s wheelchair and an alarm.
19. Before this Ms Y paid £56 per week towards the cost of her care.
20. Ms X contacted the Council to say Ms Y could not afford the costs of her care. In April 2017 the Council visited Ms Y with Ms X present to review her care costs. The Council asked for bank statements and evidence of expenses Ms Y had. In late April 2017 the Council re-adjusted Ms Y’s care costs to £78 per week.
21. The Council re-assessed Ms Y’s care costs in early 2018 and decided she had to pay £86 per week towards her care. However the Council changed Ms Y’s contribution to £112 per week following the removal of some DRE by Ms Y’s social worker.
22. Ms X contacted the Council to say Ms Y’s care costs were too high. Ms X said Ms Y had the following disability related expenses which the Council did not consider:
• Replacement shoes four times per year.
• Insurance costs for her wheelchair.
• Physiotherapy sessions.
• Laundry costs due to medical need.
• Sanitary products due to a medical condition.
23. Ms X said she spoke with someone from the Council and agreed Ms Y would pay £86 per week towards care costs as this is what she could afford.
24. On 8 May 2018 a social worker visited Ms Y to review the financial assessment. Ms X sent the Council’s financial assessment team details of Ms Y’s council tax costs, receipt for her shoes, wheelchair insurance invoice and receipt for sanitary products.
25. In July 2018 the Council contacted Ms X saying she needed to send evidence of the DRE. Ms X responded to say she had previously sent this to the Council and re-sent the evidence she provided in May 2018.
26. On 13 August 2018 the Council wrote to Ms X as it had reviewed Ms Y’s DRE and care costs. The Council backdated her care costs to £109 per week from May 2018. The Council said it could not accept some expenses such as water bills, contents insurance, phone and Internet costs as it did not consider these were DRE. However the Council included these in the protected income section of the calculation. The Council also said it could not include window cleaning, carpet cleaning, physiotherapy, counselling and sanitary products. If Ms Y wanted these included she would need to speak to her social worker who would need to decide if these could count as DRE.
27. Ms X told the Council she wanted to appeal this decision as the care costs were too high. In November 2018 the Council carried out a DRE review. It decided DRE could include laundry costs (six extra loads) and wheelchair insurance. The Council asked Ms X for further evidence of mobile phone costs and specialist shoes. The Council also requested utility bills to see if Ms Y had any extra energy usage.
28. The Council reassessed Ms Y’s care costs for the year 2019/2020 and decided she should pay £115 per week towards her care costs from April 2019. After receiving confirmation of this Ms X sought a review of the financial assessment. She also raised a formal complaint in late April 2019. Ms X complained:
• The Council has not resolved the DRE issues since March 2017.
• She wants the Council to look at Ms Y’s DRE as the Council is not considering items such as wheelchair insurance, shoes, sanitary wear, physio, counselling and utility bills.
• Each time she seeks a review of DRE/care costs the Council appoints a social worker.
29. The Council provided the following response to Ms X’s complaint:
• It last reviewed Ms Y’s DRE in November 2018.
• To reassess DRE a social worker must consider what DRE exists. The social worker passes this to the finance team for costings.
• The Council will review Ms Y’s care costs/DRE.
30. Ms X responded to the Council in June 2019. She said the Council had not answered her points about why it did not include certain items as DRE. She said she had already requested a review of Ms Y’s DRE/care costs, however due to anxiety Ms Y was not ready for the review to take place. Ms X mentioned she had spoken to the Council about the costs of a chiropodist as Ms Y cannot afford this.
31. In September 2019 the Council reviewed Ms Y’s DRE following contact from Ms X. It wrote to Ms X in November 2019 asking for proof of the expenses for Ms X’s mobile phone and shoes.
32. In April 2020 Ms X contacted the Council as Ms Y received a new assessment of her weekly care costs. Ms Y’s contribution was £109 per week. The Council told Ms X it had sent her a request for proof for certain expenses in November 2019.
33. Ms X said she did not receive the Council’s letter in November 2019 asking for proof costs for mobile phone and shoe expenses. Ms X sent evidence of these costs to the Council in April 2020.
34. The Council completed its review in June 2020 and updated Ms Y’s financial assessment. It backdated her care costs to £101 per week from April 2019, but said Ms Y’s care costs were £109 from April 2020 onwards.
35. Ms X remained dissatisfied and complained to the Ombudsman. She said Ms Y’s care costs are too high and she is unable to afford them.

Council’s response to the Ombudsman’s enquiries

36. In response to enquiries the Council said it had included Ms Y’s shoes as DRE. It backdated these to April 2019 after receiving evidence from Ms X.
37. The Council said the NHS could provide physiotherapy and counselling services to Ms Y so were not DRE.
38. The Council said it did not consider sanitary wear a separate DRE and included this within laundry. But from the review in late 2019 sanitary wear does appear to be a DRE as there were extra costings. The Council agreed to ask Ms X to provide proof for sanitary wear so it can include this as a DRE and consider backdating it.
39. The Council said it would consider toenail cutting as DRE but would need Ms X to provide proof of this expense.
40. The Council said it has inconsistently applied mobile phone costs as DRE and has backdated this to fill the missing periods from April 2017. The Council said this should be reflected in the next invoice sent. The Council agreed to send a written apology to Ms X.

Analysis

41. It is not for the Ombudsman to decide whether Ms Y is entitled to a claimed DRE. That is a decision for the Council so long as it properly considers the claim.
42. Ms X says the Council has not included DRE Ms Y incurs when calculating her care costs. This mostly relates to costs for physiotherapy, counselling, additional sanitary wear and mobile phone costs.
43. The Council did not consistently apply Ms Y’s mobile phone rental costs to her financial assessments despite it accepting this as a DRE. This resulted in Ms Y not having her mobile phone rental deducted from her care costs despite it being DRE. The Council also did not ask Ms X for proof of costs for sanitary wear despite recognising this as DRE in the October 2019 financial assessment. This is fault.
44. The Council has however agreed to backdate mobile phone costs to cover all missing periods from April 2017. The Council has also agreed to send Ms X a written apology. In addition, the Council agreed to contact Ms X to ask her to supply proof of the costs for additional sanitary wear so the Council can consider this as DRE and look at backdating the costs. This is a reasonable remedy for the injustice to Ms Y.
45. The Council has decided costs for physiotherapy and counselling are not DRE as these are available through the NHS. This is in line with its policy and statutory guidance which allows for the Council to discount items where a reasonable alternative is available for less cost. While Ms X may disagree with this decision there is nothing to suggest any fault in how the Council decided this.
46. Ms X also complained about the process for reviewing care costs, namely that the Council had to appoint a social worker each time it assessed costs. I have not found fault with this process and it is in line with the Council’s guidance. The Council’s guidance relating to DRE says it is up to social workers to determine which items are DRE. They then pass this onto the finance team who decide on the cost. Therefore when Ms X asked for a review of Ms Y’s care costs and DRE, a social worker had to decide what items were DRE before passing these to the finance team.
47. There was fault with the way the Council communicated with Ms X. The Council did not adequately explain why items Ms X requested as DRE were considered DRE when telling her how much she had to pay towards care. When Ms X complained to the Council, in April 2019, she listed items she thought the Council should consider as DRE. In response to the complaint the Council said it would review Ms Y’s care costs. This would have been a good opportunity for the Council to explain why it was not recognising items such as physiotherapy as DRE and how this was in line with its policy and statutory guidance. By not explaining its reasons for disallowing certain items as DRE, Ms X would not have known why certain items had not been included and believed the decision was flawed. As a result she continued to pursue this matter with the Council.

Agreed action

48. Within 4 weeks of my final decision the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so:
• Apologise to Ms X for not explaining why certain items of expenditure could not be included as DRE.
• Remind staff to ensure decisions about DRE are adequately explained to service users including why any items have not been considered as DRE.

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Final decision

49. I have completed my investigation and found fault by the Council in how it applied some items of DRE, however it has provided an appropriate remedy to the injustice caused to Ms Y. The Council was at fault for not explaining why certain items were not DRE. I have made recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman