Summary: Mrs X says the Council has failed to consider her son, Y’s, disability related expenditure and property related expenditure when assessing his contribution towards his care costs. We have found some evidence of fault by the Council but consider the agreed review action provides a suitable remedy.

The complaint

1. Mrs X, who complains on behalf of her son Y, says the Council has failed to consider his disability related expenditure (DRE) and property related expenditure (PRE) when assessing the contribution he should make towards his care costs.

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The Ombudsman’s role and powers

2. 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)
3. 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. As part of my investigation I discussed the complaint with Mrs X and considered information she provided. I made enquiries of the Council and considered its response and information it provided. I had regard to the relevant guidance and legislation. I set out my initial view on the complaint in a draft decision statement and considered the comments received before reaching my final decision.

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What I found

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. In February 2019 the Council adopted a new Adult Social Care Policy Statement. This explains its contributions policy in the section entitled ‘what SCC funds’. The changes in policy included replacing personalised DRE allowances with a banded allocation based on Department for Work and Pensions benefits. The policy statement sets out guidelines on what costs the Council will fund or give allowances for.
8. 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%. Under the Care Act 2014, charges must not reduce people’s income below a certain amount but local authorities can allow people to keep more of their income if they wish. This amount is known as the Minimum Income Guarantee (MIG).
9. The National Association of Financial Assessment Officers (NAFAO) has issued guidance on how to apply the Care Act assessments for costs. The Council uses that guidance for its assessments. Under that guidance where a disabled person is responsible for their living costs such as rent and mortgages these are considered as DRE. Someone living at home with parents and who is not responsible for those living costs will not therefore have these costs considered in their assessment. Benefits which the Council does not include in its calculations cover the applicant’s proportion of living costs.
10. If a person incurs expenses directly related to any disability someone has, the Council should take that into account when assessing their finances. The list of items which can be included as disability related expenses is not exhaustive. The Council makes a standard allowance of £25 per week for DRE however it can allow a larger allowance if evidence is provided to support the person’s DRE exceeds the standard allowance.

Background

11. Y has Down’s Syndrome and was born with a heart defect which impacts on his daily life. Y lives in the family home and Mrs X is his main carer and provides most of his daily care needs. Y receives support from an agency which allows him to engage socially with his peers. It also supports him maintain a voluntary placement.
12. In March 2020 the Council undertook a financial assessment review for Y to determine how much, if anything, he should contribute towards his care costs.
13. The assessment took into account Y’s income total weekly income of £216.10. This comprises of a Personal Independence Payment (PIP) of £87.65, PIP mobility payment £61.20 and Income Related Employment Support Allowance of £67.25.
14. The Council applied the MIG of £151.45 to Y’s weekly income. It also calculated that Y’s DRE totalled £14.29 and so it applied the standard DRE allowance of £25.00. It awarded him no allowance for PRE. This left Y with £39.65 which he would need to use to contribute towards his care costs.
15. Mrs X appealed against the Council’s assessment. She said the amount Y was being asked to contribute had increased by 200% which was unreasonable and unmanageable. In her appeal she highlighted the following DRE that had not been taken into account:

• chiropody required every six weeks at a cost of £31 due to poor circulation; and
• contribution towards Y’s carer’s lunch of £10 per week.

16. Mrs X also said that Y had PRE that included:

• rent at £352 per month
• energy costs of £89.32 per month. Mrs X explained that Y requires a warm home due to his poor circulation.

17. The Council considered Y’s appeal and allowed an additional DRE allowance for Y’s chiropody of £5.17 per week. However, this meant Y’s total DRE was still within the standard DRE allowance so there was no change to his contribution. The Council did not allow DRE for Y’s carer’s lunch.
18. The Council did it not allow any PRE as Y was not liable for the rent. It also said the energy costs were not excessive and so an award of PRE was not made.
19. Mrs X remained unhappy and complained to the Council. She said the Council had discretion to allow PRE and referred to advice from a charity which said the Council may consider such costs when a person lives at home with their parent(s). Mrs X also reiterated her view that Y should be contributing to a variety of PRE including maintenance, insurance, council tax, telephone and media costs.
20. The Council’s view remained that there were no grounds to award any allowance for PRE.
21. Mrs X remained unhappy and approached us.
22. In response to my enquiries, the Council made the following comments:

• PRE can only be considered if the person is liable for the property costs. This would only be the case if the person is able to claim Housing Benefit for the property.
• Costs such as maintenance, insurance, telephone and media costs are the responsibility of the homeowner. If Y was liable then these costs would be covered by the MIG.
• If insurance is high because of a person’s disability, this could be considered under DRE. Otherwise it is a cost for the homeowner.
• Council tax is the responsibility of the homeowner. Mrs X receives a 25% discount for her council tax on account of Y’s disability. She would receive the same discount as a single person if Y did not live with her.

23. For these reasons it remains of the view that there are no grounds to award an allowance for PRE and that its decision is in keeping with its practice guidance.

Analysis

24. My role is not to substitute my judgement for that of the Council’s officers. Instead, it is to examine the process that led to the Council’s decision and to see if it correctly applied guidance and legislation.
25. The Council has applied the correct MIG when calculating what contributions Y should make towards his care costs. The purpose of the MIG, which disregards some of the benefits Y receives, is to ensure that people subject to financial assessments for care costs have sufficient funds to pay for their living costs.
26. Mrs X contends that Y should have an additional allowance for PRE to cover living costs such as insurance, telephone, media and energy bills. However, these are living costs that would be covered by MIG, if Y were a homeowner or tenant. I therefore do not find grounds to question the Council’s view that an additional allowance cannot be made for them.
27. The Council may have awarded DRE for costs that were higher owing to his disabilities or something required by his care plan. No evidence of this has been provided to the Council so I do not find the Council at fault for not increasing the DRE allowance.
28. Mrs X contends Y should receive a PRE to cover the cost of rent and property maintenance. Rent is not covered by such an allowance. If Y had a liability to pay rent, he would be able to claim benefits specifically for this purpose. Homeowners are responsible for maintenance costs.
29. Mrs X says the Council has discretion to award an allowance for PRE where a person lives with their parents. She says it has arbitrarily disregarded Y’s request without considering if there are exceptional circumstances to warrant an allowance for PRE. I agree. While guidance from the NAFAO says PRE would not be routinely granted where the disabled person is not liable, this does not mean such costs should never be considered. Furthermore, this is guidance and, where there are grounds to do so, the Council can depart it from it. The policy provided to me by the Council includes examples of where PRE might be awarded to disabled people who are liable for the rent or mortgage but it does not provide any examples of when such costs might be awarded to disabled people living with their family. For this reason, it appears the Council has fettered its discretion and refuses all requests for PRE from people in Mr X’s situation. This is fault.

Agreed action

30. The Council has agreed to review its policy to recognise that it has discretion to consider PRE in exceptional circumstances where the disabled person is not liable for rent or mortgage. The policy should provide some examples of what might constitute exceptional circumstances.
31. The Council has also agreed to reconsider Mrs X’s request for PRE for Y. It should consider what she has said about the need to stay in her current home for Y’s care and any evidence she provides demonstrating that Y has used his income to contribute towards household costs. It should then explain if it considers Y’s situation to be exceptional or not.
32. The Council should carry out the above actions within four weeks of my final decision on the complaint.

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Final decision

33. I have completed my investigation as I have found fault but consider the agreed action above are enough to provide a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman