Summary: Mrs C complained about the way in which the Council carried out her financial assessment, as well the appeal she subsequently made. We found fault with the way the Council carried out Mrs C’s financial assessment and appeal. The Council has agreed to apologise for this, discuss the expenses has with regards to her vehicle and review the DRE appeal process.

The complaint

1. The complainant, whom I shall call Mrs C, complained the Council failed to follow the Care Act 2014, as well as its own procedures, when it dealt with her Financial Assessments and subsequent complaint/appeal. Mrs C says:
• The Council made errors in the Financial Assessments process and the way it considered her DREs.
• When she complained about this, the Council failed to follow its appeal process properly.
2. Mrs C says that, as a result, she has to pay an assessed contribution that she cannot afford. The Council failed to consider the issue around affordability.

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. 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)

Back to top

How I considered this complaint

6. I considered the information provided to me by Mrs C and the Council. I also carried out an interview with the Council’s Adult Social Care Operations Manager. What I found

Background legislation and guidance

7. The Care and Support Statutory Guidance states that, if the Council is charging for care support, it must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. After charging, a person must be left with enough money to pay for daily living costs such as rent, food and utilities, the minimum income guarantee (MIG). The overarching principle is that people should only be required to pay what they can afford. As such, the approach to charging for care and support needs should, amongst others, ensure that people are not charged more than it is reasonably practicable for them to pay.
8. Where a person receives benefits to meet their disability needs, the Council should take into account if that person incurs expenses directly related to any illness or disability he or she has. If so, the charging arrangements should ensure they keep enough money to cover the cost of meeting these disability-related expenses (DRE).
9. The Council’s Disability Related Expenses (DRE) practice guidance says:
• A WBA officer needs to ensure that clients understand that:
1. If a client claims a specific amount of disability-related expenditure that goes above a specified amount, the client will need to provide evidence of these additional costs.
2. If the total claim for disability-related expenditure is more than £25 per week, or if a client claims expenses beyond the individual guidance levels for that type of expenditure, it will need to go to the local Operations Manager for approval.
• The guidance level for Transport costs is nil. The guidance says that usual transport costs should be met through the person’s Disability Living Allowance / Personal Independence Payment Mobility Component and through any existent travel concessions such as a bus pass.
• Allowances are unlikely to be approved where the service / equipment is health related and / or the responsibility of, or provided by the NHS, such as certain equipment. Where the provision from another organisation does not meet the person’s needs, the Council should support the person to challenge/appeal this. If the appeal is not successful, and the person needs to spend their own money to meet the need, the Council should consider the cost under DRE.
• If a request for expenditure has been (partially) declined, the WBA officer needs to formally write to the client to explain the reason why.
• If the person with care and support needs wishes to appeal a decision, the Council will need to deal with this through its appeals process.
10. The appeal process says that:
• “The Operations Manager will pass the information to an appropriate team manager to undertake a review. (…) The Operations Manager will consider the recommendations from the Team Manager and take a decision”.
• “If the matter has not been resolved to the client’s satisfaction, the Operations Manager will refer the appeal to the Head of Safeguarding and Adult Social Care with a summary of the key issues. The summary must clearly identify the issue(s) the customer or their representative is appealing against”.
• “During this stage there must be opportunities for discussion between the customer or their representative and officers as appropriate; for example, with the Team Manager and/or the Operations Manager”.
• “The Head of Safeguarding and Adult Social Care will consider the issue(s) and take the final decision on the matter. They will inform the customer or their representative of the final decision in writing – this must clearly state the reasons why the decision was reached, particularly if the decision has not been upheld”.
11. The Care and Support Statutory Guidance states that (8.8): “The council has no power to assess couples or civil partners according to their joint resources. Each person must therefore be treated individually”.
12. The Council’s “Charging for Care and Support Policy” states that (17.2): “The County Council recognises that it has no right (except for when a couple is receiving joint benefits) to seek any information about the finances of any partner or spouse of the person being provided with the chargeable services as set out in their care and support plan. If the partner is in agreement however, a couple’s financial assessment will be offered once the financial assessment has been completed for the person receiving a chargeable service. This may have a beneficial impact on the couple as the charge levied may be reduced as a result - or it may identify that the partner is in fact entitled to previously unclaimed welfare benefits”.

The Financial Assessment process:

13. After the Council carried out Mrs C’s needs assessment, it arranged a financial assessment to calculate how much Mrs C would have to contribute towards the cost of her care support.
14. Mrs C says that at the 1st financial assessment on 4 November 2019:
• The advisor started off by saying they would assess them as a couple. This is not in line with the Council’s charging policy and the Care Act, which say this should only be offered after a financial assessment of the client.
• The advisor provided incorrect advice for the DRE she claimed for her wheelchair accessible van and powered wheelchair. The advisor instantly dismissed these expenses and said the Council would not consider any of this, because she receives a disability mobility allowance.
15. The Council told me that:
• The WBA officer should have first carried out a financial assessment of Mrs C. The officer only offered to assess them as a couple, because the officer believed this could be financially beneficial for Mrs C.
• It is very rare for a person’s transport costs to exceed DLA / PIP Mobility benefit payments. The WBA officer should have asked for supporting evidence of such costs.
16. The WBA officer failed to record what was discussed at the visit about DREs and if / what reason the officer gave for not treating certain expenses as DRE.
17. Following the visit, the officer immediately wrote to Mrs C to say that the outcome of the assessment was that she would have to contribute £138.27 per week towards the cost of her care. The officer also explained the Operations Manager would decide if the cost of her food protein would be DRE. However, the officer failed to formally write to Mrs C, as per the Council’s guidance, to explain why some of her expenses had been turned down as DRE. Mrs C says she spoke to her social worker and said she would not be able to afford this.
18. Mrs C’s contribution subsequently reduced to £82.27 per week by 20 November 2019, as the Council accepted that she buys food protein for her medical condition.
19. Mrs C was unhappy with the outcome of her financial assessment and called the Council. In response, the Council decided to ask a different WBA officer to carry out a financial reassessment. The officer would collect information from Mrs C and hand this over to her manager to decide about the contested DREs.
20. The officer summarised the information collected during the second visit in an internal email to her manager on 28 November 2019. However, Mrs C says the information the second WBA officer recorded and provided was not detailed enough to be a fair and true reflection of what she discussed at the visit. I have reviewed the relevant record which included a lot of information, but was nevertheless less detailed than I would have expected based on my understanding of the case and Mrs C’s arguments about the costs of her vehicle, wheelchair and shower chair. In response to my observation, the Council has told me it still finds that the information included in the email, along with the breakdown of the vehicle running costs supplied by Mrs C, was sufficiently detailed.
21. The Council told Mrs C in a letter dated 4 December 2019 that it had reduced her contribution to £58.40 a week because, following the second financial assessment, it allowed additional expenses to be treated as DRE: Wipes; Rubber Gloves; Toilet Chemicals and Mobile Phone. However, the Council failed again, at this point in time, to provide a sufficient and clear explanation in writing as to why some of her expenses had been turned down as DRE.
22. According to the records, the Council had tried to obtain further information and clarifications from Mrs C’s social worker with regards to some of the items requested. However, it made the decision before it had been able to obtain this.
23. The reason provided by the Council for not including some expenses, was as follows:
• Vehicle: The option of a Motability Car should be explored further.
• Wheelchair: The social worker should explore if there are any other options.
• Shower chair: The social worker should explore if the shower chair could be replaced in future for free via the equipment store.
24. Mrs C told me that the information included in the letter she received showed that the Council had not yet considered all the information and arguments she had provided. Furthermore, she felt the Council should have waited with its decision until it had received the feedback from the social worker requested above.
25. Mrs C was unhappy with the outcome of her financial assessment. She sent an email to the Council the following day, with a request to forward it to the Operation Manager. It said:
• Vehicle: The response showed the Council had not considered the information she provided. She had told the advisor at the second visit everything about the issues and costs related to having a Motability vehicle vs the cost of buying a private vehicle. Mrs C also attached a spreadsheet with these figures.
• Wheelchair: the social worker was not medically qualified to come to a view whether there were any other options. The NHS Wheelchair Services had been clear they are unable to supply a suitable wheelchair.
• Shower chair: The equipment store did not have anything suitable for her specific medical condition.
• Overall, she said she was disappointed the Council made assumptions, instead of clarifying things with her directly before it made these decisions. She said the Council should not have made a final decision without all the facts. 

Analysis:

26. At the first financial assessment in November 2019, the Council was at fault for:
• Not following its own policy as it wanted to assess Mrs C and her husband as a couple, rather than only assess Mrs C. The Council has no power to assess couples or civil partners according to their joint resources. Each person must therefore be treated individually. However, once the financial assessment is completed, and Mrs C’s contribution is calculated, the Council can use its discretion to offer an assessment of Mrs C as a couple, and only if the partner wishes to divulge their financial resources, to determine if this will result in a lower contribution for Mrs C.
• Instantly dismissing any expenses Mrs C was claiming in relation to her vehicle and wheelchair. If the total cost of mobility expenses are above the amount the client receives in mobility disability benefits, the Council should review the expenses to consider if it will treat the difference as DRE. The Council failed to consider this at the first visit.
• Not properly recording the discussions and decisions made at the visit around DRE.
27. The Council accepts that the wording in 17.2 of its Charging Policy needs amending to reflect that a better off calculation is offered at the council’s discretion and only if the partner wishes to divulge their financial resources.
28. The Council failed to follow its own DRE guidance, when it failed to explain in its letter of 4 November 2019 (following the first visit) why some of her expenses had been turned down as DRE.
29. It again failed to explain this sufficiently in the letter dated 4 December 2019, following the second visit.

The appeals process

30. The Council decided to treat Mrs C’s complaint through its formal appeals process. The Council’s Adult Social Care appeal process says the Operations Manager will pass the information to an appropriate team manager to undertake a review. The Operations Manager will consider the recommendations from the Team Manager and take a decision.
31. The operations manager provided a response to Mrs C’s appeal on 9 December 2019. The email said that:
• The Council would not consider expenses for continence pads as DRE as they were provided by the NHS free of charge, and Mrs C should discuss any specific requirements with her GP.
• The Council would not consider the cost of Mrs C’s television, phone, internet, Homecare Insurance or Pet costs as DRE, because these were “normal” living expenses, not related to her disability, that someone without a disability would also have to pay for.
• Total cost of vehicle each week minus PIP mobility = £30.85 per week. Reason: Running and maintenance costs of a vehicle are a ‘normal’ living expense. Any additional costs associated with a vehicle that meet Mrs C’s disability needs are provided for within the PIP higher rate benefit she receives, which includes a specific allowance to support her mobility needs. Alternative options are also available through the Motability scheme.
• £147.12 per week – to save towards replacement of adapted power chair. In line with its policy, needs that can be met by the NHS are not eligible to be considered as DRE. The NHS wheelchair service provides wheelchairs according to assessed needs, including powered wheelchairs for external use.
• £1.90 per week to save towards replacement of shower chair. In line with its policy, equipment that can be provided by the Council cannot be included as DRE. Following an assessment, if Mrs C has needs that require the provision of a shower chair, then this can be provided free of charge through its community equipment service. Mrs C’s most recent social care assessment states she does not have a shower chair in situ and that she uses a strip wash to maintain her hygiene.
32. Mrs C says she had asked the Council several times if she could discuss her case with the operations manager, before she made her decision, to ensure she knew all the facts and Mrs C’s arguments. However, the Council repeatedly denied her requests.
33. The Council told me that Mrs C had set out her views in an email on 5 December 2019, which she asked to be presented to the Operations Manager.
34. The Operations Manager told me she discussed the case with the team manager and considered information provided by the complainant, the social worker and the WBA officer to make the decision. Even though Mrs C was asking for a meeting, she did not believe it was proportionate as she had enough information available.
35. Mrs C was unhappy with the outcome of the first stage of the appeal process. She said she did not have input into the appeal process, felt excluded and unable to put her views across. She said that: the inaccuracies and errors in its reply clearly showed the Council failed to properly understand her appeal. Mrs C asked again if she could have a discussion with the operations manager. However, the operations manager said she had made her decision and passed on the case as part of stage two of the appeals process.
36. The case was reviewed by the Principal Social Worker at stage two, because the position of Head of Safeguarding & Adult Social Care was vacant at the time. The stage two outcome decision letter said that:
• Having reviewed the information above, the Operations Manager had already given full consideration of the items and provided clear reasons why each item has not been allowed.
• “In your email of 10 December, you have detailed that you dispute the appeal response and said the OM’s response contained inaccuracies and errors but have not specified what in your view these were and as such I am unable to respond directly to this”.
37. The Council says the appeal was rejected on 12 December in part because Mrs C had not detailed the inaccuracies she complained of in her 10 December email.
38. Mrs C says she was unhappy with the way in which the Council considered her information and arguments as part of the appeal process. She told me that, although the Council sent a WBA officer to collect more information to inform its decision, the process did not provide her with a sufficient opportunity to provide all the information and put all of her (several) arguments directly to the decision maker in person before the decision was made. Mrs C says she told the Council several times that she wanted to be given this opportunity but was told the Council would not agree to this and the decision-maker would base her decision on the information she had received so far.
39. In response, the Council told me that Mrs C’s views were strongly put across in her verbal discussions and email correspondence with the WBA, the social worker and team manager and all of this was considered as part of the appeal process. Given the extent of correspondence on the matter, a further meeting was not considered necessary or proportionate. The Principal Social Worker reviewed the case recording about the WBA visit and there was no indication at the time that Mrs M had insufficient time or opportunity to provide the relevant information and there was a comprehensive list of items to be considered for DRE.

Analysis

40. Mrs C had told the Council she wanted to have a discussion with the relevant manager as part of her appeal process and before a decision was made. This was particularly important, because she had already expressed concerns on several occasions about the accuracy and comprehensiveness of the information the officer had collected and passed through. Furthermore, the Council’s appeals guidance states that such opportunities should be provided during the appeal process. A direct discussion about the items with the operations manager would also have resulted in Mrs C getting a better insight as to why / how the Council had come to some of its views. However, the Council refused to do this, which it should have.
41. As part of Mrs C’s stage two appeal, she said that the stage one appeal had included inaccuracies and omitted relevant information. As such, the Council was at fault for making a decision about Mrs C’s stage two appeal, without making any attempt to try and establish with her what inaccuracies and errors she was referring to.
42. According to the Council’s Disability Related Expenses (DRE) practice guidance, the operations manager makes a final decision on some cases, as part of the usual DRE decision making process. However, this means that in such cases, the person whose decision is being challenged through the appeal process (the operation manager), is the same person who has to decide if the appeal is uphold at stage one. This is not good practice.

Disability Related Expenses

43. Mrs C remains unhappy with the Council’s final decision on the following expenses:
• Wheelchair Accessible Vehicle:
1. Mrs C has gone into great detail to explain what the running costs are of her van and compare the cost of replacing her van through the motability scheme, compared to replacing her van with another privately bought van. She has also explained to the Council why she believes it should cover the difference between these costs and her PIP mobility payments. She said the option of replacing her van with another private van would be cheaper for her than to use the Motability scheme. However, she said that both options will be more expensive than her weekly PIP mobility payments, as a result of which the Council should allow the difference. She provided a breakdown for all the different options to the Council.
2. The Council’s decision was that the weekly cost of replacing her van in the future, either by buying another private van or using a Motability scheme, was fully covered by the PIP mobility benefits payments she was receiving. Furthermore, the cost of maintaining the vehicle and of petrol were normal living expenses and therefore not treated as DRE.
3. Analysis:
1. Mrs C said at the time, and ever since, that the weekly cost of replacing the vehicle with either a private or motability scheme, were both more than the weekly amount she receives as a PIP mobility payment. However, the Council claimed this was not the case. I have not seen evidence the Council provided any evidence to Mrs C that showed how it concluded this. This is fault.
2. The Council said that maintaining a vehicle, and the cost of petrol, are normal living expenses. However, the Care Act Guidance says that a council should consider any: transport costs, necessitated by illness or disability (including costs of transport to day centres) that are over and above the mobility component of DLA or PIP. The Council was aware that Mrs C has to regularly drive to hospitals that are far away. However, I have not seen evidence that the Council considered what proportion of her petrol costs falls within the above definition, or how it assured itself that Mrs C has enough funds in her PIP mobility payment to pay for that.
3. The Council decided as part of a previous case that the Ombudsman investigated (18 004 618) that: “it made an allowance towards the cost of fuel of £20 per week, because of the extenuating circumstances which had seen the client use up the entirety of her Mobility payment to pay towards the lease cost of the car”. The Council should therefore consider if this case is sufficiently similar to make a similar allowance.
• Power wheelchair:
1. Mrs C says she needs a specialist wheelchair for indoor use and one for outdoor use. However, the NHS only provides one wheelchair to be used for both indoor and outdoor wheelchairs. However, the NHS does not have a wheelchair that will be suitable for both her indoor and outdoor needs. Her Senior Social Worker and Senior Occupational Therapist are aware of her specific situation and have been in contact with her Wheelchair Therapist at her local NHS wheelchair service. She also explained this to the WBA officer. However, the Council failed to consult them before it made its decisions.
2. The wheelchair service has said that Mrs C’s specific health situation is probably the most complicated they had come across due to very complex issues related to pain management. It has said that: “Her private power chair offers her more suspension and better head support compared to the NHS chair.(…).” However, it is unable to provide this type of chair. Furthermore: “Despite numerous attempts to improve her comfort in her NHS chair, we have not been successful and until she is able to tolerate the full assessment process she is needing to use her private power chair as feels this is the most comfortable solution at present and has been for the past 2 years.
3. The Council explained in its final decision that: Needs that can be met by the NHS would not be treated as a DRE. The NHS wheelchair service provides wheelchairs according to assessed needs, including powered wheelchairs for external use.
4. The Council has told me that this equipment should be provided by the NHS and remains under investigation with the social worker and health colleagues. The NHS is still reviewing whether any further treatments could assist the unusual pain response Mrs C is experiencing, which could assist in identifying a suitable wheelchair through the NHS. As such, the Council would not include this as a DRE.
5. Analysis: The reason the Council provided was not sufficiently detailed. It failed to mention it was aware there were unresolved issues about finding a suitable chair that will meet her indoors and outdoors needs, and that the NHS was still reviewing if it could better manage Mrs C’s pain which would (therefore) enable it to possibly provide a suitable wheelchair in the future. It would also have been helpful if the Council, as part of its response, had explained that its DRE guidance states that: If and where the provision from another organisation does not meet the person’s needs, the Council should support the person to challenge/appeal this. If the appeal is not successful, and the person needs to spend their own money to meet the need, the Council should consider the cost under DRE. The above means the Council cannot yet consider yet to include any costs as DRE, because it is not yet clear if Mrs C needs to pay to replace her wheelchair privately in the future.
• Shower chair:
1. Mrs C says that she only had one shower for twelve months, following her operation in 2017. In October 2018, a day centre agreed to let her have regular access to their shower. However, it did not have the shower chair she needed. The Council’s OT told her that the chair Mrs C needed was not available through the community equipment supply and it would take time to get this chair approved by a committee and ordered. Mrs C said that: having been given the opportunity to finally have a regular shower, she decided that the quickest way to get some relief was to purchase her own suitable shower chair, which cost £495.
2. The Council said that any shower chair she needs would be provided free of charge through its community equipment service. This meant that there was no need for Mrs C to put funds aside to pay for a shower chair in the future.
3. Analysis: The Council should have clarified that it will not treat the cost of the shower chair Mrs C has bought in the past, if the chair can be replaced in the future without Mrs C having to pay for it (putting funds aside for it every week). According to the records, Mrs C will not have to pay for her shower chairs in the future. As such, the Council concluded there are no DREs with regards to this item.
44. Mrs C has told the Council she cannot afford the assessed charge. However, the Council has not yet considered this. I found that, once Mrs C had completed the Council’s appeal process, the Council should have established with Mrs C why she believed that, in her specific case, the assessed final contribution was not affordable for her.

Agreed action

45. I recommended that, within four weeks of my decision, the Council should:
• Provide an apology to Mrs C for the faults identified above and any distress this has resulted in. It should also pay her £100.
• Organise a telephone call between Mrs C and the Operations Manager to discuss her costs in relation to her vehicle and decide what costs, if any, will be treated as DRE and explain why.
• The Council should share the lessons learned with its WBA managers and officers, particularly around recording of visits and explaining decisions in letters.
• Review the process it has in place for making DRE decisions and the stage one appeal, particularly in relation to Operation Managers making decisions on appeals against their own decisions.
• Ensure that clients are given an opportunity, as part of the appeals process, to discuss their case directly with the manager responsible for making the decision, when the client requests this.
• Review and revise the wording of paragraph 17.2 of its Charging Policy (see paragraph 27 above).
46. The Council has told me it has accepted my recommendations.

Back to top

Final decision

47. For reasons explained above, my view is that I should uphold Mrs C’s complaint.
48. 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.

Back to top

Investigator's decision on behalf of the Ombudsman