Summary: The Council was at fault for the way it considered Mr X’s care costs. As a result, Mr X cannot be sure he is being charged the correct amount. The Council has agreed to re-make its decision to remedy the injustice caused to Mr X.

The complaint

1. The complainant, whom I refer to as Mr X, complains about the way the Council assessed his costs for care. Mr X says:
1. The Council has not disregarded his pension income despite this being paid in lieu of wages. He believes the Council should disregard his pension in line with provisions listed in the Care and Support (Charging and Assessment of Resources) Regulations 2014, Schedule 1, para 15(3) (d) & (e)).
2. The Council has not properly assessed his Disability Related Expenditure, namely in relation to gas and electricity costs.
2. Mr X says he cannot afford the costs of his care.

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. As part of this investigation I considered the complaint made by Mr X and the response from the Council. I considered the information provided by Mr X. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Mr X and the Council and considered comments received in response.

Back to top

What I found

Law and guidance

6. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
7. Where a council decides to charge for care and support service, it must carry out an assessment of a persons financial resources to decide how much they should pay towards their care. (Care Act 2014, section 17)
8. When calculating what a person should pay towards their care costs, councils must disregard earnings from employment or self-employment. (Care and Support (Charging and Assessment of Resources) Regulations 2014, section 14)
9. Earnings will include remuneration paid by or on behalf of an employer a person who for the time being is absent from work because of illness. However occupational or personal pensions should not be regarded as “earnings” which should be disregarded. (Care and Support Statutory Guidance, Annex C paragraphs 9 & 10)
10. Council’s must also disregard other sums when calculating a person’s income. This includes payments received from any agreement or court order in consequence of any personal injury, or payments under an annuity purchased in consequence of personal injury. (Care and Support (Charging and Assessment of Resources) Regulations 2014, Schedule 1, para 15(3) (d) & (e))

Disability related expenditure (DRE)

11. 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 Income Support plus 25%. The Council can take a person’s capital and savings into account 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)
12. 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.
13. If a council takes a disability benefit into account, they must also assess DRE in a financial assessment.
14. 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).
15. The Care and Support Statutory Guidance (the Guidance) allows councils to accept other costs as DRE. Councils should consider any reasonable extra costs directly related to a person’s disability.
16. 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

17. West Sussex County Council’s Policy on Charging (the Policy) sets out how the Council considers DRE. The Policy says the Council will only make allowances for DRE where the costs of the expenditure:
• are met entirely by the person claiming them;
• relate to the disability in question;
• are supported by documentary evidence; and
• exceed normal costs of living expenses (i.e. what an adult without the disability would reasonably be expected to spend).

Background

18. Mr X is tetraplegic and employs personal assistants in his home to care for him. Prior to this Mr X suffered a personal injury which meant he had care needs and could no longer do his job. Mr X said, in lieu of wages, his employer agreed to inject an extra 25 years into his pension. Mr X is not at retirement age but currently receives his pension.
19. Previously Mr X had his care costs paid in full by the Council. In February 2017 the Council reassessed Mr X and decided he had to contribute around £200 per week towards his care costs. Mr X appealed the Councils decision on April 2017 as he did not agree with the Council’s financial assessment. The Council wrote to Mr X’s representative about his appeal, however it is not clear what happened further after this.
20. In February 2019 the Council referred Mr X for a welfare benefits assessment as he reported he was unhappy with how the Council calculated his care costs. The Council agreed to investigate Mr X’s care costs. To assist him, Mr X applied for the assistance of an advocate however it took until July 2019 for the advocacy service to allocate him one.
21. In September 2019 the Council visited Mr X at his home to review his care. Mr X told the Council he cannot afford his care costs since his contribution changed in 2017 and has reduced his care.
22. The Council visited Mr X in October 2019 to discuss his disability related expenditure. Mr X said the Council has not considered all his expenses and wanted the Council to include the following expenses:
• Equipment for nurses (i.e. Gloves, aprons, wipes) and creams for bed sores and pressure sores.
• Extra costs for bedding and laundry due to catheter leaks.
• Special trousers for his wheelchair.
• Cost of a Gardner.
• Internet and television costs. Mr X says he is reliant on this as he cannot take part in other hobbies.
• Gas and electricity.
23. Mr X also told the Council he would like his pension income disregarded. Mr X said he stopped working due to a personal injury. After the injury his employer tried to look at ways he could still work but this was unsuccessful. Mr X said his employer decided that rather than paying him a wage it would inject an extra 25 years into his pension to provide him with an income because of his lost earnings. Mr X told the Council the Department for Work and Pensions (DWP) has disregarded his pension income due to the severity of his disability and the Council should do the same. The Council agreed consider whether his pension income could be disregarded.
24. Following the meeting with the Council Mr X sent the Council evidence of his disability related expenditure.
25. In November 2019 the Council provided Mr X with the outcome of its reassessment of his care costs. The Council included the additional DRE’s Mr X requested except for gas and electricity. This resulted in Mr X’s care contribution being slightly reduced. The Council backdated this to 2017 and adjusted Mr X’s account and debt. The Council decided not to disregard Mr X’s pension income. The Council said the DWP only disregarded Mr X’s pension income as he previously received Incapacity Benefit. When Incapacity Benefit was abolished those who were on it kept the same protection after they moved onto a different welfare benefit. The Council said it does not have to disregard Mr X’s pension and it would not do so for others who receive the same welfare benefit he does.
26. On 26 November 2019 Mr X complained to the Council. Mr X said the Council has discriminated against him as he cannot work and if he earned income the Council would disregard this. Mr X said the Council should have disregarded his pension income in accordance with the Care and Support (Charging and Assessment of Resources) Regulations 2014, Schedule 1, para 15(3)(d), as his pension is a payment under an annuity purchased in consequence of a personal injury. Mr X also complained the Council had not disregarded extra expenditure for gas and electricity when assessing his contribution towards care costs.
27. The Council provided its final response to Mr X’s complaint in February 2020. The Council maintained it does not have to disregard Mr X’s pension. The Council said it applied DRE to his financial assessment. In relation to his expenses for gas and electricity it did not include this as DRE as the bills for these costs fell below the average for Mr X’s household size. The Council explained it would only include gas and electricity costs where the bills are above the average households. In these cases the Council said it would pay the difference.

Analysis

Complaint a) – The Council has not disregarded Mr X’s pension income

28. Mr X says the Council should disregard his pension income when calculating his care costs as this is paid in lieu of wages following a personal injury. Mr X says the Care and Support (Charging and Assessment of Resources) Regulations 2014, Schedule 1, para 15(3)(d) and (e) apply to his circumstances. By not disregarding his pension, Mr X says the Council is discriminating against him based on the severity of his disability, as if he could work the Council would disregard this income.
29. The Council explained it decided not to disregard Mr X’s pension income as the Care and Support Statutory Guidance, Annex C states pension income must be included in the financial assessment.
30. Mr X has explained that his pension is not typical. He is of working age and suffered personal injury. He discussed with his employer the possibility of keeping his job following his injury, but his employer decided it was better to inject 25 years into his pension and pay him this. The Care and Support (Charging and Assessment of Resources) Regulations 2014, Schedule 1, para 15(3)(e) allows councils to disregard income which is received in consequence from a personal injury.
31. The Council was at fault for the way it considered whether to disregard Mr X’s pension income. In coming to its decision not to disregard Mr X’s pension income the Council has not considered whether Mr X’s pension is income received because of his personal injury as oppose to a pension received by a retired person. In looking at whether to disregard Mr X’s pension income I would have expected the Council to investigate why Mr X was receiving a pension as opposed to long term sick pay and whether there was any prospect of him continuing to work following his accident.
32. Mr X also says the Council’s approach is discriminatory as he is being treated differently to those that do not have his disability and had he been able to work this income would be disregarded. Again I would have expected the Council to show that it has considered Mr X ‘s circumstances to satisfy itself that Mr X was not being discriminated against.
33. By not considering the above Mr X cannot be sure the Council has come to the correct decision to disregard his pension income.

Complaint b) – The Council has not properly assessed Mr X’s DRE, namely in relation to gas and electricity costs

34. Mr X says the Council should treat his gas and electricity bills as DRE, however the Council decided not to include gas and electricity expenditure as DRE.
35. In coming to this decision the Council considered Mr X’s weekly gas and electricity costs which were slightly below the national average for a couple in detached housing. The Council decided as Mr X’s weekly gas and electricity costs were below the national average it would not treat this expenditure as DRE. This is in line with the Council’s policy which says the Council will allow costs for DRE where costs of the item exceed normal expenditure. Therefore the Council was not at fault for how it calculated Mr X’s DRE.

Back to top

Agreed action

36. Within 8 weeks of my final decision the Council agreed to:
37. Re-look at Mr X’s care costs to decide whether to disregard his pension income. In doing this it would be appropriate for the Council to consider the following:
1. Why Mr X is receiving an early pension as opposed to long term sickness/capability payments.
2. Whether Mr X’s claim that his pension was made in consequence of a personal injury was correct.
3. Whether Mr X would be able to carry out other work which was not the role he had prior to his accident.
4. Whether Mr X’s pension payments could be treated as genuinely early pension payments.
5. Whether Mr X is being discriminated against due to his disability as he is of working age and would have income disregarded if he could work.
38. If the Council decides to disregard Mr X’s pension payments the Council should backdate Mr X’s care costs to February 2017, i.e. when he was initially re-assessed and told to pay a contribution.
39. If the Council decides to uphold its original decision, it should write to Mr X to tell him and explain how the debt the Council is pursuing him for has been calculated.
40. The Council should provide evidence to the Ombudsman it has carried the above out.

Back to top

Final decision

41. I have completed my investigation and found the Council was at fault for the way it considered Mr X’s care costs. This caused injustice to Mr X as he cannot be sure his care costs are correct. The Council has agreed to the above actions to remedy the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman