Summary: Mr X complained the Council refused to include the cost of his oxygen therapy, iPhone and assistance dog as disability related expenditure. The Council was not at fault. It considered Mr X’s care plan, statutory guidance and its own policy in deciding not to include these costs as disability related expenditure.

The complaint

1. Mr X complained about the Council’s handling of his disability related expenditure (DRE). He complained the Council refused to include the cost of oxygen therapy an assistance dog and an iPhone as DRE.
2. Mr X said these services and items help him cope with his disability and therefore the Council should include them as DRE. Mr X said the Council’s refusal to do so is causing him distress and uncertainty because he cannot afford to pay for the services himself.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
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)

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How I considered this complaint

5. I spoke to Mr X about his complaint and considered information he provided.
6. I considered the Council’s response to my enquiry letter.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

The Care Act 2014 and charging

8. In 2014, the Government introduced the Care Act. This legislation replaced all previous guidance about how councils assess and provide care for adults in need. It includes guidance on charging for care.
9. The Care Act states councils have discretion to charge people for the care they receive. If a council decides to charge for care, it must complete a financial assessment. If a person refuses a financial assessment they must self-fund their care.
10. Councils can consider both capital and weekly income when completing financial assessments. If a person needs care to stay in their own home, the means test will not include the value of their property.
11. Weekly income includes state benefits such as:
• Personal Independence Payment;
• Attendance Allowance (care component);
• Disability Living Allowance (care component) and
• retirement pensions.
12. The Council assesses a person’s contribution to their care by totalling their weekly income and then deducting:
• The minimum income guarantee- this is a standard allowance set by the Government and is what it considers to be the minimum amount of money a person needs. For a person over the age of 60 this is £189.00 weekly.
• Disability related expenditure.
• Housing costs- such as rent, mortgage, or council tax if this is applicable.
13. The Council deducts these allowances from a person’s overall weekly income; the remaining figure is the amount the person must pay for their care.

Disability Related Expenditure (DRE)

14. People may have to spend money on items and services that help them manage or cope with their disability, impairment or long-term health condition. These costs are called DRE. The Care Act statutory guidance says councils must leave people with enough money to pay for necessary DRE to meet any needs which are not being met by the local authority. It is up to the person to tell the council what DRE they have.
15. DRE costs usually fall into one of these three categories
• Specialised items and services such as wheelchairs and care support. These items may have additional costs like repair and insurance.
• Increased use of non-specialised items and services. This could include things a person has to use more because of their disability such as transport and heating.
• Higher cost non-specialised items and services. This may include things that cost more than the average such as home delivery.
16. The guidance says councils should develop and maintain a policy on how they apply discretion to people who apply for DRE. The Council’s policy says it may include extra expenditure as a DRE in a person’s financial assessment. It says it will consider how the extra costs relate to a person’s disability and may ask for proof of spending.
17. The statutory guidance says the person’s care plan is a good starting point for considering what is necessary DRE. However, it says a council should be flexible. The guidance provides examples but says ‘any reasonable additional costs directly related to a person’s disability should be included’.

What happened

18. Mr X is blind as a result of a stroke and therefore receives care and support to meet his eligible needs. In 2018 the Council carried out a financial assessment to calculate Mr X’s contribution towards the cost of his care. The Council assessed Mr X’s contribution as £22.55 per week. The financial assessment included DRE related to chiropody costs, domestic and laundry help. It also allowed Mr X to include the cost of oxygen therapy as a DRE when Mr X provided receipts. Mr X accessed oxygen therapy via a charity.
19. In 2019 the Council reassessed Mr X’s financial contribution. Mr X had asked the Council to consider a dog which he had purchased as a DRE. Mr X said the intention was to train the dog so it would become an assistance dog and therefore said the ongoing cost of it was DRE. He also asked the Council to consider his internet costs as DRE. The Council calculated Mr X’s new contribution as £63.98 per week. The assessment no longer included an allowance for oxygen therapy and did not include the cost of the dog or his internet expenses.
20. Mr X complained to the Council via an advocate about the outcome of the financial assessment. The Council responded stating it had notification that Mr X no longer attended oxygen therapy. Therefore, the removal of this expenditure caused the higher contribution. The Council said it had included chiropody costs, domestic help and laundry costs as DRE, as it had done since 2016. The Council said Mr X had provided no additional evidence in relation the dog or the internet expenses to show how it helped with his disability.
21. Mr X’s advocate complained further about the matter. Records show the Council reconsidered Mr X’s internet costs and decided to include it as DRE. However, it said it no longer considered oxygen therapy as a DRE because it was an expense arising from a health need and not a social care need. Therefore, Mr X should approach his doctor about it. The Council said Mr X did not have an eligible need for an assistance dog so therefore it could not consider the cost of it as a DRE.
22. Mr X’s advocate escalated his complaint in February 2020 about the Council’s refusal to include the cost of oxygen therapy and Mr X’s dog as a DRE. The advocate said Mr X benefited enormously from the oxygen therapy in recovering from his stroke. They argued it was an additional cost related to Mr X’s disability. Regarding the dog, they said the ‘guide dogs’ organisation had assessed Mr X’s eligibility for a dog. However, he was not eligible due to weakness in his hand. The ‘guide dogs’ recommended an assistance dog would be appropriate to meet Mr X’s needs. The advocate said they had already provided the Council with a letter from the ‘guide dogs’ as evidence.
23. The Council sent Mr X’s advocate a final response. It said its view was that oxygen therapy is a prescription service and therefore considered as a health intervention. It said Mr X had chosen to use oxygen therapy without any clinical guidance and it was not related to his assessed needs. Regarding Mr X’s dog it said it had no evidence that the dog was trained or fulfilled the role of an assistance dog. It said it had no evidence to show how the dog would support Mr X or meet any of his needs identified in his care plan. As such, it said it did not consider either oxygen therapy or the cost of his dog as DRE.
24. Mr X remained unhappy with the Council’s response and complained to the Ombudsman about the Council’s failure to include the dog and oxygen therapy as DRE. He also complained the Council refused to include the cost of his iPhone as DRE. Mr X said the iPhone had specialist apps and support available in relation to his disability.
25. In May 2020 Mr X further appealed to the Council and provided it with additional evidence in support of his assistance dog and iPhone. The Council considered this additional evidence and decided in October 2020 to include the cost of the assistance dog and iPhone as DRE.

My findings

26. It is not the role of the Ombudsman to decide what a person should pay towards their care or what DRE should be allowed. That is the Council’s role. The Council has some discretion about what it considers as DRE. The Ombudsman would generally expect the Council to consider using its discretion to disregard expenditure, where the person has provided clear evidence that it has a direct link to their disability.

Mr X’s oxygen therapy

27. Prior to 2019 the Council allowed Mr X to include the cost of oxygen therapy as DRE on production of receipts. The Council said Mr X had stopped providing it with receipts and therefore the Council removed the cost from Mr X’s financial assessment. Mr X did stop attending oxygen therapy for a period of time so here was no fault in that decision.
28. When Mr X appealed the decision not to include oxygen therapy the Council said it now considered it a health intervention and therefore no longer considered it a DRE. The conflicting reasons from the Council for no longer including the cost of oxygen therapy as a DRE were unhelpful. However, there is nothing in Mr X’s care and support plan to show it meets an eligible need. There is also no evidence from either a doctor or other professional to show how it meets any of Mr X’s needs. Furthermore, the evidence shows Mr X did not attend oxygen therapy during most of 2019 and only started attending again in the summer of 2020. So, he has not incurred the cost of it for a significant amount of time.
29. In response to my enquiry letter the Council said Mr X should discuss access to oxygen therapy with his doctor. It said if the doctor declines to make arrangements for Mr X it would then re-consider including the cost as a DRE. This is appropriate. The Council has acted as we would expect and is not at fault for deciding to no longer include oxygen therapy as DRE.

Mr X’s assistance dog and iPhone

30. I did not investigate whether the Council refused to include Mr X’s iPhone as a DRE. This is because it did not form part of Mr X’s complaint to the Council prior to coming to us and it already decided to include the cost as a DRE in October 2020.
31. The Council declined to include Mr X’s assistance dog as a DRE in 2019 because at the time there was no evidence to show how it would meet his eligible needs. The use of an assistance dog was not identified in Mr X’s care plan and at the time the dog was on a waiting list for assistance dog training. The Council had no evidence at the time of how the cost of the dog linked to Mr X’s disability. The Council was entitled to ask for further evidence to show how the dog, once trained, would meet Mr X’s needs arising from his disability. Mr X did not provide any additional evidence. The Council was not at fault for deciding not to include the cost of Mr X’s dog as DRE.
32. When Mr X provided it with additional evidence in support of the assistance dog, the Council revised Mr X’s financial assessment. He also provided additional evidence to support his use of an iPhone. As such the Council agreed to include this in the financial assessment as DRE. The Council has acted appropriately in assessing Mr X’s DRE based on the evidence he provided. Mr X’s weekly contribution has reduced to £33.16 which the Council has backdated to May 2020.

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Final decision

33. I have ended my investigation because there was no fault in how the Council decided not to include oxygen therapy and the cost of an assistance dog as DRE.

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Investigator's decision on behalf of the Ombudsman