Summary: Mr C complains about the way in which the Council has carried out his financial assessment, and the Council’s subsequent decision that he needs to pay a contribution for his care. The Ombudsman found the Council failed to discuss Disability Related Expenses (DREs) at the first financial assessment visit. Furthermore, when the Council considered Mr C’s DREs, it failed to explain to him why it decided it would not treat some of his expenses as DRE. The Council has agreed to provide an apology for this and inform its staff about the lessons learned.

The complaint

1. The complainant, whom I shall call Mr C, complains he is unhappy with the way in which the Council has dealt with his financial assessment.

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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. 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

4. I considered the information I received from Mr C and the Council. I shared a copy of my draft decision statement with Mr C and the Council and considered any comments I received, before I made my final decision.

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What I found

Legislation

5. The Care Act Guidance says that:
• Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. As part of this, a council needs to ensure that any charges do not reduce a person’s income below the level of “Income Support plus 25%”. The Council can take a person’s capital and savings into account, subject to certain conditions (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)
• After charging, a person must be left with the minimum income guarantee (MIG), as set out in the Care and Support (Charging and Assessment of Resources) Regulation 2014. The purpose of the MIG is to promote independence and social inclusion and ensure that a person has enough funds to meet basic needs such as purchasing food, utility costs or insurance. The level of the MIG is not set by the council. The MIG for 2019/20 was as follows: 7(4) Where the adult concerned is a member of a couple, and one or both are aged 18 or over, the MIG amount is £71.80.
• Only the income of the cared-for person can be taken into account in the financial assessment of what they can afford to pay for their care and support. Where this person receives income as one of a couple, the starting presumption is that the cared-for person has an equal share of the income. A council should also consider the implications of the financial assessment for the cared-for person’s partner.
• Councils may take most of the benefits people receive into account. However, they need to ensure that, in addition to the minimum guaranteed income, people retain enough of their benefits to pay for things to meet those needs not being met by the council.
• In designing their policy, councils should consider the objectives of care and support charging and how it can:
1. ensure that people are not charged more than it is reasonably practicable for them to pay;
2. promote wellbeing, social inclusion, and support the vision of personalisation, independence, choice and control
6. Furthermore, if a council takes a disability benefit into account is the financial assessment, they must also assess disability-related expenditure (DRE). The Care Act Guidance says councils must leave individuals with enough money to pay for necessary disability related expenditure to meet any needs not being met by the council. DRE are costs that arise from a disability or long-term health condition. However, it may be reasonable for a council not to allow items where a reasonable alternative is available at lesser cost. For example, a council might not allow for expenditure on items where there is a suitable alternative available through the NHS

What happened

7. Mr C told me the Council did not provide any information to him about Disability Related Expenses (DRE) at the financial assessment in November 2018. He said the Council subsequently decided in January 2019 that he would need to pay a contribution, without having discussed DRE with him first. Mr C says the Council failed to allow him an opportunity to put forward a list of expenses to the Council that he considered to be DRE, before it told him to start paying a contribution.
8. The Council says that:
• It sent an email to Mr C in October 2018, explaining a Financial Assessment would take place. It attached a copy of the Council’s information pack “Thinking about charges for home care and other non-residential care services”. This document provided Mr C with information about DREs.
• A Finance Visiting Officer (FVO) met with Mr C on 1 November 2018 to carry out a financial assessment to determine how much he would have to contribute towards the cost of his care. The officer explained to Mr C that he did not have to pay anything at the moment. However, the officer explained this would change once he would start to receive Employment Support Allowance (ESA). The Council helped Mr C to make a joint claim for ESA after his partner moved in to live with him in October 2018.
• The Council says it discussed DRE at the visit and included a community alarm as DRE. The note of the visit records Mr C understood the financial assessment process. Mr C signed a declaration, and terms and conditions, confirming the financial assessment had been explained to him.
• When Mr C received his ESA, the Council wrote to him in January 2019 to say he would have to pay £72.31 per week from 23 January 2019 onwards. The Council used its discretion not to backdate this charge to November 2018, the date from which he received his ESA. The letter contained a breakdown to show how the Council had arrived at this amount. It only included the cost of his community alarm as DRE. The letter also said that, if he did not understand the letter, or disagreed with the way the Council calculated his contribution, he should contact the Council’s Client Services Assessment Team.
9. The Council’s record of the financial assessment visit on 1 November 2018 does not refer to the assessor asking Mr C whether he has any expenses he would like the Council to consider as DRE.
10. Mr C contacted the team and spoke to the officer who had helped him with his ESA claim. Mr C asked the officer to check the calculations, which she did. She confirmed to Mr C that the calculation was correct. According to the Council’s record, he did not complain during this contact about the way the Council had dealt with DRE.
11. Mr C contacted the Council again on 30 January 2019 to say he was unaware he would be expected to pay a contribution to his care, and nobody explained to him how the Council had calculated this. He also said that he did not have the funds to pay the required amount and would no longer be able to run his car.
12. In response, an officer visited Mr C on 20 February 2019 to go through the calculation. The record of the visit states the officer discussed various DREs, including the cost of: a gardener, a cleaner, water, gas, electric, petrol / insurance (for his motability car), and bedsheets. The officer recorded she needed to ask her manager whether the Council could treat some of these expenses as DRE. Following the visit, the officer sent a letter to Mr C that explained his provisional assessed contribution would be £53.62. It also said that the amount of the charge was provisional, pending a decision by the Complex Case Review Group on the additional DRE he asked for.
13. The Council told me the CCRG considered this on 26 February 2019. The DREs concerned were: additional cost of a special diet, the cost of petrol and insurance for his care (any costs above his Low rate DLA mobility); the cost of internet; and astronomy classes. The panel decided that:
• The diet could be allowed if the Council receives more evidence about the additional costs to Mr C.
• Mr C should look at buying a mobility vehicle together with his partner. This will also allow carers to drive the care.
• The Council could consider up to a maximum of 50% of his internet costs if he provides evidence of his phone and internet bills.
• The cost of astronomy classes is a choice and not DRE
14. The Council says that, as such, it wrote to Mr C after the meeting to ask him for further information. The letter also said that the Council would not treat the following as DRE: Additional finance / petrol / costs for his vehicle or additional allowance for the carer to drive his car. The letter did not explain why the Council made that decision.
15. Mr C made a complaint to the Council on 1 March 2019. He said he was still unclear about the charging policy and how his contribution had been calculated, especially: how their income was calculated, DREs and how their personal budget / direct payment would be managed. Mr C wanted the Council to treat his income and his partner’s income and expenses as a joint matter on a household basis.
16. In response, the Council told him on 4 March 2019 that two senior finance officers would visit him on 19 March. At the visit, the officers explained the charging policy to Mr C, went through the calculation and confirmed it was correct. The Council says that Mr C reported at the end of the meeting that he was “much clearer about the policy and the charges”.
17. After the meeting, Mr C wrote to his MP on 22 March 2019. Mr C said he understood the reasoning behind some of the policies, but his complaint was not yet resolved. He said he remained unhappy with the policy itself. The MP forwarded Mr C’s email to the Council.
18. After the meeting, the Council confirmed to Mr C that it has used its discretion to further delay the start date to 25 March 2020, from which Mr C would have to start paying his charge. The Council told Mr C in writing at the end of March 2019, that:
• Mr C’s assessed maximum charge of £42.75 per week would start from 25 March 2019 and increase to £62,46 on 8 April due to an annual increase in benefits.
• Allergy tablets could be prescribed, and Mr C does not have to pay prescription charges if he is also named on his partner’s joint claim for Income Related ESA.
• Mr C should pursue the costs related to ‘health classes’ with his GP. If the GP would say no, Mr C should ask the GP to put the reasoning in writing and the Council would reconsider this.
• The items he said he would like to purchase had all been agreed in principle, subject to him providing receipts.
• The Council bases it “average cost” (for heating etc) on information from the Office of National Statistics.
• The attached financial reports listed the Disability Related expenses the Council has now allowed.
19. Mr C and his partner met with their MP in May 2019. The MP subsequently told the Council that Mr C did still not understand how the Council calculated his contribution. Mr C wanted a senior officer to meet and explain this to him.
20. The Council wrote to Mr C in May 2019. The letter said that: “From 22 July 2019 we are changing the MIG for everyone aged 18-64 from £189 to £165. This means you will have to pay more from 22 July 2019”. The Council says the Care and Support Statutory Guidance allows the Council to use the minimum income guarantees for different age groups.
21. On 19 June 2019, Mr C refused an appointment with the Head of Integrated Care as he wanted to meet the Head of Adult Social Care. Mr C continued to express his unhappiness to the Council, as a result of which it organised a meeting with him in September 2019. The meeting was attended by the Operational Head of Social Care, the Financial Visiting Officer and Mr C’s Local Councillor. The record of the meeting says that:
• Mr C felt the Council should be treating his ESA as joint and basing the contribution on this. The finance officer explained that Mr C is the one receiving the contribution-based ESA, so policy said it would therefore be treated as solely his. His partner receives Income Related ESA as a couple, which meant the Council included 50% of this within his assessment. As such, Mr C is assessed to pay a contribution towards his care and his wife is not.
• Mr C was still disputing the decision not to allow physiotherapy, as advised by his GP. He said the places the NHS funds do not accept disabled people on the course they need. The Council explained that physiotherapy is recommended by the NHS (his GP) to meet a health need. This should therefore be funded by the NHS and is not a DRE.
• The Council’s policy is that its: “financial assessment will be based on the person's income and capital only, and their share of any joint income and capital. It does not assess couples or civil partners jointly”. This is in line with Care Act Guidance. However, the Council will give regard to any partner or spouse living in the same household to ensure they have enough money to live on. Following the visit, the FVO checked the assessment and again confirmed the Council correctly applied its policy.
• After the meeting, having received further clarification of the calculations, Mr C said he agreed his assessed contribution was based upon the correct figures, but he remained unhappy with the charging policy itself.
22. The Council has explained to Mr C that if his GP is not able to arrange funding, and can explain why the NHS cannot fund this, the Council will reconsider his individual circumstances. It is up to Mr C to pursue this further with his GP.
23. Mr C says the Council failed to explain to him what will happen (if anything) with regards to the charges he and his partner have to pay once their child would be born (which has since happened), even though he repeatedly asked the Council to explain this. The Council told me Mr C asked this question at the meeting on 2 September 2019 and received a response.
24. The Care Act Guidance says that that people should not be charged more than it is reasonably practicable for them to pay. A council should also ensure that its approach to charging promotes wellbeing and social inclusion. Mr C told me that, as a result of his charge, he will not have enough money left to pay for reasonable household expenses and to engage with any hobbies he would like to pursue for his wellbeing and social inclusion (for instance visiting a gym or swimming). However, he says that, other than carrying out a standard financial assessment, the Council has not looked into this aspect.
25. The Council says:
• It has carried out a financial assessment and considered his DRE in line with relevant guidance. The Council has treated the following expenses as DRE: Astronomy Club, CEA (Cinema Tickets) Card, Music Stool, Amazon Echo Dot, Garden Tools, Bed Sheets, Latex Gloves, Home Telephone Line Rental, Freeze Gel, Car Insurance, Shoes, Mobile Phone, Orthopaedic Pillows, Medication Sorter, Orthopaedic Mattress Topper, Support Pillow, Mobility Scooter, Community Alarm, Allergy Tablets, Prescription Costs. The Council told me these items include those which relate to activities and hobbies, and promote wellbeing and social inclusion, including a cinema card, mobility scooter to enable attendance at a flower show, Astronomy Club and a Music Stool.
• The couple’s household income, after deducting the assessed contribution, is £656 per week. As such, they are both left with an income that is significantly above MIG levels. Mr C is not paying any council tax or rent.

Analysis

26. The Care & Support Statutory Guidance says that where a council arranges care and support to meet a person’s needs, it may charge the adult. The guidance also allows the Council to use the minimum income guarantees for different age groups, which it is doing.
27. Although Mr C should have been aware about DREs, because he had received information about this before the financial assessment, there is no evidence the Council discussed this with him during the financial assessment visit in November 2018, which is fault. At a financial assessment, the Council should ask if there are any expenses the client wants the Council to consider as DRE. There should subsequently be a discussion about this, which should be recorded.
28. After the CCRG panel had made a decision about Mr C’s DREs, it informed him of the outcome in writing. However, the letter failed to explain to him why the CCRG decided not to allow the cost of additional finance / petrol / costs for his vehicle or additional allowance for the carer to drive his car. This is fault.
29. Although there was some fault in the process through which the Council initially decided how much Mr C would have to contribute (see para 27 and 28), I do not find fault with the way the Council has eventually arrived at the decision about the amount he needs to contribute. Furthermore, the Council has used its discretion to delay the start of these payments by several months.
30. I also found the Council put a sufficient amount of effort into trying to explain different aspects to Mr C of the way through which it had arrived at the final amount for his contribution.
31. If Mr C still believes he does not have enough money left, after paying his contribution, to pay for his remaining expenses, he should provide evidence (a breakdown) of his household expenses to the Council to consider.
32. Part of Mr C’s unhappiness is with regards to the Council’s charging policy itself. The Council has told me that the Council’s policy is currently the subject of a Judicial Review.

Agreed action

33. I recommended that, within four weeks of my decision, the Council should:
• Provide an apology to Mr C for the faults identified above
• Remind its financial assessors of the importance to always ask about DREs and record the subsequent discussions about it.
• Remind relevant staff within adult social care and finance that they should always explain when the Council decides that an item should not be DRE, why the Council has made this decision, with reference to relevant guidance. It should also record evidence that/how this explanation was given.
34. The Council told me it has accepted my recommendations.

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Final decision

35. For reasons explained above, I found there was some fault with regards to the Council’s actions. 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