Summary: Mrs B complains on behalf of her daughter, Ms C, that the Council delayed in: reviewing her support plan; telling her the outcome of a financial assessment; and explaining why she had to contribute towards the cost of her services when she had not done so before. She also says there was fault in the way the Council dealt with Ms C’s disability-related expenditure (DRE). We find the Council delayed in completing a review of Ms C’s support plan and a financial re-assessment and in informing Mrs B of the outcome and explaining why Ms C had to pay a contribution. But this did not cause Ms C a significant injustice. There was no fault in the way the Council dealt with Ms C’s DRE.

The complaint

1. Mrs B complains on behalf of her daughter, Ms C, that the Council delayed in:
• completing a review of her support plan;
• telling her the outcome of the financial assessment it completed in May 2019; and
• providing an explanation as to why she had to contribute towards the cost of her services when she had not previously done so.
2. Mrs B also complains that there was fault in the way the Council dealt with Ms C’s disability-related expenditure (DRE).
3. She says this caused financial hardship and distress.

Back to top

The Ombudsman’s role and powers

4. 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)
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 have considered all the information provided by Mrs B, made enquiries of the Council and considered its comments and the documents it provided.
7. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Legal and administrative background

8. Councils have a duty to arrange care and support for those with eligible needs. They 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)
9. The Care and Support Statutory Guidance (‘the guidance’) says that, when a council decides to charge, it must carry out a financial assessment to decide what contribution the person can afford to pay towards the cost of their care and support. It must give a record of this to the person and explain about the assessment and any changes to the charge. It must do this regularly, usually annually, but this can vary according to individual circumstances. An assessment must be completed when the person’s circumstances change or if they ask for an assessment.
10. After paying the assessed charge, a person’s weekly income should not reduce below a minimum income level, called the minimum income guarantee (MIG). The purpose of the MIG is to promote independence and social inclusion and ensure a person has enough funds to meet basic needs. This is currently £151.45 per week.
11. The guidance provides that any income from benefits must be taken into account when considering what a person can afford to pay towards their care and support from their income.
12. The guidance says that when a council includes disability-related benefits in the financial assessment, it should assess the person’s disability related expenditure (DRE). It should allow the person to keep enough benefit to pay for necessary disability-related expenditure to meet any care needs that are not being met by the council. The financial assessment should set out exactly what the Council considers to be DRE.
13. A DRE is defined by the Department of Health as for “items where the user has little or no choice other than to incur the expenditure in order to maintain independence or quality of life”.
14. The Guidance says DRE should be considered when:
• the payment is needed to meet a person’s specific needs due to a medical condition or disability, as identified in the Council’s care and support assessment;
• the cost is reasonable and can be verified; and
• it is not reasonable for a lower cost or free alternative item or service (e.g. NHS) to be used. If a lower cost alternative could have been used the expense considered will be capped at the lower cost of the item.

Key facts

15. Ms C is an adult. She has Down’s Syndrome, learning difficulties and other health related issues. She lives at home with her mother who provides a significant amount of support. Ms C attends a day centre once a week and an arts centre once a fortnight. She also has a personal assistant (PA) who helps her access other services including a disability theatre group. Ms C has been receiving a PIP mobility award since 2017. She pays for her PA and the services she attends from her personal budget.
16. In May 2019 the Council sent Mrs B a letter asking her to complete a financial assessment form. The last financial assessment was completed in 2016. Mrs B completed the forms and returned them to the Council.
17. On 5 November 2019 the Council wrote to Mrs B with the outcome of the assessment. It said Ms C would have to pay a maximum of £59.35 per week towards the cost of her care and support services from 2 December 2019. It enclosed a breakdown of how it had calculated the charge. Ms C’s direct payment would be reduced by this amount so she would have to pay the amount into her direct payment account.
18. Mrs B was shocked that Ms C had to contribute towards the cost of her services as she had never had to do so before despite receiving a personal budget for seven years. She spoke to a finance officer who explained this was because Ms C’s benefits had changed. She was no longer receiving Disability Living Allowance (DLA) which had been replaced by a Personal Independence Payment (PIP) and this was treated differently in the financial assessment. The officer noted the payment had been calculated incorrectly and changed it to £39.65 per week.
19. The finance officer who had completed the financial assessment wrote to Mrs B explaining that Ms C was now being charged a contribution towards the cost of her services because PIP (daily living) is a different benefit to DLA (care component). The Council previously disregarded an amount of DLA care component in its financial assessment because this was awarded for night care and the Council was not providing night care. However, the PIP daily living component does not include this element, so it is taken into account in full when working out a customer’s contribution to the costs of their care.
20. Mrs B requested a re-assessment of Ms C’s needs as the Council had not completed a review in over four years. She said Ms C’s needs had not changed but there were different day services she might want to explore. The Council completed a review of Ms C’s support needs in February 2020. No significant changes were made.
21. Mrs B provided further information about Ms C’s DRE. The Council re-assessed her contribution based on this further information on 2 March 2020. Her weekly charge was reduced to £30.31 per week from 10 February 2020. The Council wrote to Mrs B with a breakdown of the calculation. It is deducted from Ms C’s income the MIG of £151.45 and agreed to include the following costs as DRE:
• single cup water dispenser £0.15
• sanitary pads £0.93
• mouthwash for dental issues £1.39
• dental flossing machine head replacements £0.39
• hair washing £3.33
• replacement clothing £1.35
• disability club £1.15
• cinema exhibition card £1.50
• disability theatre company £10
• Mobile phone £3.69
• broadband £6.83
• Netflix/now TV subscription £3.32
• water and sewage usage £0.66
22. Mrs B complained to the Council about the charges Ms C now had to pay. A senior finance officer responded. She repeated that Ms C is now liable for a charge because she is in receipt of PIP instead of DLA. She explained this is something that affects most DLA claimants because they are gradually being moved across to PIP. She accepted that, when Mrs B received the initial outcome letter in November 2019, the Council should have explained why a charge was now applicable and apologised for the failure to do this.
23. Mrs B complained to the Ombudsman.

Analysis

Review of Ms C’s care and support needs

24. Mrs B asked the Council to review Ms C’s care and support needs in November 2019. She says the previous assessment was completed in 2016 and the Council only completed a review in 2019 because she asked it to do so.
25. Care and support plans should be reviewed at least every 12 months. So, I find the Council was at fault in failing to complete a review for three years.
26. However, I do not consider this caused Ms C a significant injustice because her needs had not changed significantly during this time. In any event, it was always open to Mrs B to request a review if she felt this was necessary.

The financial assessment completed in May 2019

27. I also find the Council was at fault in failing to complete a financial re-assessment until 2019. The previous one was in 2016. The guidance states councils must regularly reassess a person’s ability to meet the cost of any charges to take account of any changes to their resources.
28. However, I do not consider the delay caused Ms C a significant injustice because the Council did not backdate the charge. She therefore benefited financially from the delay because, if the Council had completed the assessment sooner, she would have had to pay a contribution earlier.
29. I find the Council delayed in informing Mrs B of the outcome of the re-assessment. She completed the forms in May 2019 and was not informed of the outcome until November 2019. However, as explained above, I do not consider Ms C suffered a significant injustice as a result because the charges were not backdated.
30. I find the Council was also at fault in failing to explain to Mrs B at the outset why Ms C now had to contribute towards the cost of her services when she had not previously done so. This caused Mrs B distress and confusion. The Council accepts this and has apologised. I consider the Council’s apology is a satisfactory remedy for the injustice caused.

The outcome of the financial assessment

31. Mrs B says there was fault in the way the Council dealt with Ms C’s DRE. She says her circumstances had not changed except for the fact that she now receives PIP instead of DLA so she cannot understand why Ms C must contribute towards the cost of her support services.
32. I understand Mrs B’s surprise and concern that Ms C must now pay a contribution towards the cost of her support services. However, the Council carried out a financial assessment that complies with law and guidance and it was entitled to recalculate Ms C’s contribution in line with changes to her benefits.
33. Mrs B says she should have been consulted before the Council made charges because of Ms C’s transfer to PIP. I do not consider this to be the case. Ms C was charged because of the change to her benefits and not because of a change to the Council’s charging policy. The Council is entitled to take the full amount of the PIP payment into account. However, as explained previously, it should have explained to Mrs B why Ms C now had to pay when she had not previously.

DRE

34. Mrs B does not agree with the Council’s decision not to include certain items as DRE and to only include a percentage of other items.
35. It is not for the Ombudsman to say whether the Council should or should not include items as DRE or at what amount. Rather, we look at whether there was fault in how the Council reached its decision.
36. The Council has some discretion about what it considers to be 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. But we would not expect it to take into account items such as food or utility bills because these are daily living costs that everyone has, and these should be budgeted for from the MIG of £151.45 per week. The purpose of the MIG is to provide for bills and household costs.
37. I am satisfied the Council considered Ms C’s expenses in accordance with the guidance and its policy and I have seen nothing to suggest it was not aware of all the relevant facts, including Ms C’s care and support plan and information provided by Mrs B, when it made its decision. The Council has explained to Mrs B the reasons why it decided not to include some items as DRE. In the absence of administrative fault in the way the Council made its decision, there are no grounds for the Ombudsman to criticise the merits of that decision.

Back to top

Final decision

38. I find the Council was at fault in that it:
• failed to complete a review of Ms C’s support needs for three years;
• failed to complete a financial reassessment for three years and delayed in informing Mrs B of the outcome;
39. However, I do not consider these failings caused Ms C a significant injustice so I have not recommended a remedy.
40. I find the Council was also at fault in failing to explain to Mrs B at the outset why Ms C now had to contribute towards the cost of her support services. The Council’s apology represents a satisfactory remedy for the injustice caused.
41. I have completed my investigation on this basis.

Back to top

Investigator's decision on behalf of the Ombudsman