Summary: There was fault by the Council in the way it dealt with Ms C’s claim for disability related expenditure (DRE). It gave confusing and inaccurate information and failed to consult an OT. The Council will reassess DRE, backdate if applicable, apologise and amend its records.

The complaint

1. Ms C complains for her son Mr X that Norfolk County Council (the Council):
1. Changed its charging policy
2. Gave confusing information about the proposed change to the charging policy
3. Only completed a light-touch financial assessment
4. Addressed invoices to Mr X when she is his appointee and manages his finances
5. Did not properly consider Disability Related Expenditure.
2. Ms C says the Council’s actions caused avoidable distress to Mr X who does not understand the invoices. She says he cannot afford to pay the charge.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)

Back to top

How I considered this complaint

5. I considered:
• The complaint to the Ombudsman
• The Council’s response to the complaint
• Documents described later in this statement
• Comments from the parties on a first draft of this statement
6. I discussed the complaint with Ms C.
7. Ms C and the Council had an opportunity to comment on two draft decisions. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

8. Care and Support Statutory Guidance (CSSG) is statutory guidance which councils should have regard to. CSSG says councils can charge people for care they provide and if there is a charge, this should follow national regulations on charging.
9. There is no legal requirement for a council to consult before introducing charges. CSSG says where a council is satisfied its charging scheme is in line with the Care Act 2014, they do not need to take further steps to review arrangements. They should consider the need to consult with the public, but formal consultation is not required if their approach to charging has not changed with the introduction of the Care Act.
10. National guidance from the government sets a minimum income guarantee (MIG). This is the minimum amount of money people must be left with before a council can charge them for their care. Until July 2019, the Council’s charging policy set the MIG for all customers, whatever their age, in line with national guidance for older people. This policy was more generous for people under pension age. The Council wanted to make changes to its policy to move to the less generous (lower) national MIG for people under pension age and it did so.
11. A recent judgment in the High Court found the changes the Council made to the charging policy discriminated against severely disabled people. The Court ordered the Council to amend or withdraw the policy to remove the discriminatory impact. (R oao SH v Norfolk County Council [2020] EWHC 3436)
12. In response to the judgment, the Council is in the process of reviewing the charging policy. While this is underway it is:
• Making an initial amendment to the policy setting a weekly MIG of £165 and using discretion to disregard some parts of disability benefits and
• Apologising to all those affected, implementing the initial change as soon as possible and backdating it to July 2019.
13. Councils can carry out light-touch financial assessments. A light-touch financial assessment is where a council treats a person as if a full financial assessment has been carried out. If a council uses light-touch assessments, it must still be satisfied on the basis of evidence from the person that they can afford the charge. (Care and Support Statutory Guidance, paragraph 8.22)
14. Guidance explains the situations where a council may consider a light-touch financial assessment:
• Where a person has significant finances and does not want a full assessment for personal reasons, but wants to access council support.
• Where a council charges a small or nominal amount which the person is clearly able to meet and would clearly have the relevant minimum income left and carrying out a financial assessment would be disproportionate.
• Where a person receives basic benefits that show they cannot contribute towards their care costs (for example, income- based job seeker’s allowance). (Care and Support Statutory Guidance, paragraph 8.23)
15. When carrying out a light-touch financial assessment, a council needs to satisfy itself the person can afford the charge. The ways a council could satisfy itself that the person could pay the charge are:
• The person has property or savings worth more than the capital limit (currently £23,500).
• The person has sufficient income left following the charge due. (Care and Support Statutory Guidance, paragraph 8.24)
16. The council should still ensure people are not charged more than is reasonable for them to pay and should consider the level of charge proposed as well as evidence the person provides. They must tell the person when a light-touch financial assessment has taken place and explain they can have a full financial assessment if they wish. (Care and Support Statutory Guidance, paragraphs 8.25 and 8.26)
17. Some types of income are not taken into account in a financial assessment. This is called ‘disregarded income’ and includes some benefits, earnings and some tax credits.
18. Disability Related Expenditure (DRE) are expenses agreed by a council that a person has to pay connected to their disability. They act as an allowance in a person’s financial assessment and reduce their weekly charge. DRE can include specialist items and services such as wheelchairs. They can include extra heating or laundry costs, equipment and aids and regular payments such as wheelchair insurance and gardening costs. Statutory guidance says:
• A council must leave a person with enough money to pay for necessary DRE to meet needs that are not being met by the local authority
• The care plan may be a starting point for considering DRE, but councils need to be flexible. (Care and Support Statutory Guidance Annex C, 39 and 41)
19. In assessing DRE council should include community alarm, privately arranged care, cost of specialist items to meet the person’s disability needs. Any reasonable costs directly related to a person’s disability should be included. (Annex C, 42)

What happened

20. Mr X has autism and lives with Mrs C. Ms C manages Mr X’s finances on his behalf. Mr X is eligible for social care funding and receives day services which include funding from the Council for six hours a week of support from a support worker who helps Mr X access activities in the community. Mr X has to pay for the costs of his support worker attending activities in the community, as well as his own costs.
21. In 2017, the Council financially assessed Mr X and the outcome was he did not have to pay a charge under the charging policy in force at the time.
22. At the end of 2018, the Council wrote to people it had identified as likely to be affected by the proposed changes to its charging policy. The letter explained the proposals (see paragraph 10) and enclosed a copy of a form for people to complete and return if they wanted to comment. It explained the proposals would be discussed at the Council’s meeting in February 2019 and that the Council would tell people in good time if there were changes to the amount they had to pay. A consultation document accompanied the letter. It gave the background to the proposals and some examples of cases which might be affected if the changes were implemented.
23. The Council approved the proposed changes to the charging policy in February 2019. The Council sent Mr X an easy read letter about changes to the charging policy. The letter did not mention DRE, because there was no change to the policy on DRE. It summarised the two changes to the policy that had been agreed. The letter explained the Council would tell people what they needed to pay in March. There was a helpline for members of the public to contact the finance team for advice.
24. The Council carried out a light-touch financial assessment for Mr X in April 2019, to apply from July when the new policy came in. The assessment set out Mr X’s income and his disregarded income. There was no DRE included. A letter to Mrs C in June set out how the charge had been calculated and explained there was the option to speak to a finance officer or have a new financial assessment. The letter included a DRE claim form with a list of common DRE and a box at the end for people to say if they had other DRE they wished to claim.
25. When Mrs C complained to the Council in August 2019, she said Mr X had to pay for the support worker’s activity costs as well as his own at a cost of between £20 and £38 a week. Mrs C also said a social worker had told her that the proposed changes to the Council’s charging policy only applied to people getting respite care and not day services. She also said Mr X had not had a financial assessment and the Council had just presented him with a charge.
26. The Council’s responded to the complaint in September saying:
• It had carried out a light-touch financial assessment using the information it already had on file about Mr X. This was allowed under government guidance
• If she wanted a full financial assessment with an assessment of DRE, she could have one and a finance officer could visit her at home to complete this
• The forms asked about common DRE as examples. It was not possible to set out a full list
• The form no longer asked for a medical professional’s letter to support a claim for DRE
• She had signed a form in 2017 on behalf of Mr X to say he consented to the charge
• It had not yet received a DRE claim for Mr X. The finance team would do a home visit to complete a full DRE assessment if she wanted this.
27. Mrs C contacted the finance team and an officer visited her at home in October. Mrs C told me the officer took photos of receipts for utilities, specialist items and therapeutic activities expenses relating to Mr X’s disability. Mrs C told me she asked the finance officer to contact Mr X’s occupational therapist (OT) for further information about the DRE claim. Mrs C told me the finance officer said the support worker’s activities costs for accompanying Mr X to activities would not be an allowable DRE as they should be paid for by his direct payment funding for care. Mrs C told me she did not pursue this point because at the time Mr X had stopped accessing the support worker’s service and so they would not need to claim those costs as a DRE.
28. Mrs C sent me a DRE claim form she received from the Council in October. The form appears to have been completed by the finance officer. It describes the evidence and information Mrs C provided about specialist equipment Mr X had bought and used in connection with his disability including a thermometer, safety knives, timer clock electric toothbrush and face brush (advised by the OT), tinted lenses, specialist calendar. The form lists the exact costs of each of these items. The form also said ‘companion animal: OT statement to be obtained.’ And mentioned activity costs.
29. The finance team wrote to Mrs C at the end of October 2019 saying it had reassessed Mr X’s DRE and allowed £4.60 a week for electricity, water, footwear and clothing and this had reduced Mr X’s care charge accordingly from July 2019. The letter went on to say ‘items such as companion animals, safety knives, specialist calendars and whiteboards do not fall under the guidance for DRE…items listed such as activities and equipment for these activities, these should be referred to the social worker….for further action’
30. The Council carried out a further financial assessment in December 2019, applying from the end of July. This appears to be the same assessment as set out in the letter of October described in the last paragraph. The assessment set out Mr X’s income from benefits and disregards. It also set out weekly DRE of:
• £1.24 for clothing and footwear
• £3.16 for electricity
• £0.20 for water
31. Mrs C continued to be in contact with the finance team and in November 2019 she asked the Council to consider additional DRE. In March 2020, the Council wrote to Mrs C referring to her further request for DRE in an email in November 2019. The letter said:
• It asked the social care practitioner who said the dog was a family pet and not a companion dog so it won’t allow any expenses as DRE
• An advanced payment on the motability car was not allowable because it was paid in November 2018 before Mr X’s charge came in
• It would consider equipment like safety knives, specialist calendars and whiteboard as DRE if she provided receipts.
• There was an appeal panel she could use if she was not happy with the Council’s decision.

Was there fault and if so did this cause injustice?

Complaint a: The Council changed its charging policy

32. In a recent judicial review, the charging policy was found to have had an unintentional discriminatory effect and the Council was ordered to amend and/or withdraw the policy to remove the discriminatory impact. It is in the process of reviewing the policy at the time of writing and has also made some initial amendments which I have described in paragraph 12.

Complaint b: The Council gave confusing information about the proposed change to the charging policy

33. Ms C said a social worker told her the proposed changes applied to charges to residential care. This information was incorrect which was fault. Any confusion was resolved by the complaint response and consultation information, both of which made it clear the changes applied to non-residential care charges.

Complaint c: The Council only completed a light-touch financial assessment

34. Light-touch assessments are allowed under Care and Support Statutory Guidance, as long as a council also offers a full financial assessment. The Council offered a full assessment when Ms C raised concerns. There was no fault.

Complaint d: The Council addressed invoices to Mr X when she is his appointee and manages his finances

35. There was an agreement in 2017 that the Council recognised Ms C managed Mr X’s finances. So it was fault to address invoices to Mr X. This caused avoidable confusion.

Complaint e: The Council did not properly consider DRE

36. The Council has in my view given Ms C unhelpful and conflicting information about what can and can’t be DRE and this was fault. For example, the finance team’s letter of October 2019 said the kitchen safety items, specialist calendar etc and companion dog do not fall under the guidance for DRE. This was not correct as CSSG is clear that any item of expenditure connected to a person’s disability can be allowed as DRE, with evidence. It was fault to give inaccurate information.
37. But, in later correspondence in March 2020, the Council confusingly said the same items in the previous paragraph could be DRE and Ms C needed to provide receipts. Yet Ms C had already provided receipts for the equipment and kitchen safety items which the finance officer photographed during the visit in October 2019, so it was unclear why these items were not included in Mr X’s DRE allowance. Making Ms C provide receipts she had already provided during the visit was fault, as was giving contradictory information about DRE.
38. The Council asked the social care practitioner about certain items, like the dog. But the DRE claim form completed by the finance officer in October 2019 said a statement was to be obtained from the OT (not the social care practitioner). It was unclear whether Ms C or the Council was responsible for obtaining the said statement. However, the finance team went ahead and contacted the social care practitioner, despite Ms C having said in the October meeting that Mr X’s OT had relevant knowledge of his disabilities and expenses. It was in my view unreasonable of the Council not to get information from the OT when Ms C specifically indicated the OT would have relevant information. The failure to consult with the OT meant Mr X lost out on an opportunity to have a full consideration of his possible DRE and potentially lost out on a reduction to his care charge.

Agreed action

39. The Council should, within two months of my final decision:
• Contact Mr C to ask her for an up-to-date list of items she wants to have considered as DRE. Mrs C will need to provide evidence of expenses (e.g. receipts, where possible)
• Consult with the OT about the companion dog and any other issues Ms C raises about DRE items that the OT has relevant knowledge of
• Add the safety and equipment items listed on the October 2019 claim form as Ms C has already provided receipts for them.
• Reassess Mr X’s DRE and backdate any additional DRE it agrees to July 2019
• Apologise
• Amend its records so financial correspondence goes to Ms C in future.
40. The Council is in the process of reviewing the charging policy in light of the judicial review summarised earlier in this statement. It has agreed to implement initial amendments described in paragraph 12 and will do so to all customers including Mr X. It will also carry out re-assessments of everyone affected (including Mr X) once the review of the charging policy is complete. This is an appropriate form of redress for those affected.

Back to top

Final decision

41. There was fault by the Council in the way it dealt with Ms C’s claim for disability related expenditure. It gave confusing and inaccurate information and failed to consult an OT. The Council should reassess DRE, backdate if applicable, apologise and amend its records.
42. I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman