The Ombudsman's final decision:
Summary: Miss X, Y’s legal deputy, complained on behalf of his estate that the Council failed to include various costs that should be regarded as Disability Related Expenditure in his financial assessment. She also questioned the Council’s calculation of Y’s Minimum Income Guarantee. We found no evidence of fault by the Council and for this reason we ended our investigation.
- Miss X, who acted as Mr Y’s legal deputy, says the Council failed to include various costs that should be regarded as Disability Related Expenditure (DRE) in his financial assessment. She also says it has not applied the Minimum Income Guarantee (MIG) correctly.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I considered all the information provided by Miss X and spoke to her. I made enquiries of the Council and considered its response. I had regard to the relevant guidance and legislation. I set out my initial thoughts on the complaint in a draft decision statement and invited Miss X and the Council to comment.
What I found
Relevant law and guidance
- Councils can make charges for care and support services they provide or arrange. Charges may only cover the costs the council incurs. (Care Act 2014, section14)
- 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).
- 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. The list of items which can be included as disability related expenses is not exhaustive but does not include items or services which should be provided by the NHS (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, ‘Fairer Contributions Guidance’ 2010)
- The Council makes a standard allowance of £25 per week for disability-related expenditure (DRE).
- Mr Y was a single adult with no dependents. He had a learning disability, epilepsy, arthritis, and a visual impairment. He received a Personal Independence Payment (PIP) at the enhanced mobility rate.
- The Council funded support for Mr Y by providing a live-in carer to support him with all his needs including personal hygiene, food preparation and accessing the community. Mr Y’s family were actively involved in his care with his sister Ms Z attending medical appointments with him.
- In June 2020 the Council completed a Fairer Charging Assessment for Mr Y. The assessment noted that Mr Y received PIP at the enhanced mobility rate of £89.15 per week. He also received Employment Support Allowance at £162.60 per week giving him a total weekly income of £251.75.
- The Council applied the disregards set out by the Department for Health and Social Care. Mr Y’s MIG was £151.45 which comprised the basic MIG rate of £91.45 and an additional £40.35 and £19.70 in respect of disability premium and enhanced disability premium.
- The Council also deducted a further £69.85 for DRE. Mr Y’s total disregarded income amounted to £221.30. Therefore, the Council said he should contribute the remaining £30.45 of his income towards his care costs.
- Miss X challenged the Council’s decision that Mr Y should contribute towards his care costs. She said the Council had not correctly calculated his MIG and that it had wrongly refused to allow DRE in respect of:
- window cleaning every three weeks;
- shopping delivery charges;
- food costs for his live-in carer;
- a replacement washing machine and tumble dryer; and
- travel expenses for Ms Z to accompany him to medical and other appointments.
- The Council considered Miss X’s challenge by convening a meeting with the relevant officers. The meeting concluded that:
- Its What Staffordshire County Council Funds policy (hereafter referred to as the policy) says it will only fund window cleaning twice a year. No evidence had been provided to justify a greater frequency.
- The policy no longer allowed for live-in carers’ food expenses to be included in DRE allowances.
- Y had a Motability car provided for his transport to appointments. DRE payments could not be used for third-party to travel.
- The shopping delivery charge of £6.99 should be allowed as Y had no alternative way to receive his shopping.
- That National Association of Financial Assessment Officers (NAFAO) guidance allowed £3.85 per week for laundry which was inclusive of wear and tear on laundry equipment.
It also reiterated why it had correctly calculated Mr Y’s MIG.
- Miss X continued to dispute the Council’s calculations and decisions on DRE and so approached us.
- During my investigation Mr Y passed away. Miss X advised she still wished to pursue the complaint. As Miss X was Mr Y’s legal deputy and is responsible for his estate I considered it appropriate for my investigation to continue.
- It is not for us to say what the Council should consider as Y’s DRE. Instead, we examine the process leading to the Council’s decisions for evidence of fault.
- I have found no evidence of fault in how the Council made its decision regarding DRE for Ms Z to attend appointments with Mr Y. The Council’s policy says it will not ‘double fund’ costs by making an allowance for DRE where the person already has access to resources to meet their need. Mr Y had access to a Motability vehicle which Ms Z and Mr Y could have used to travel to appointments. I note that Mr Y’s carer did not drive however this did not prevent Ms Z using the Motablity car and keeping it at her home to travel with Mr Y.
- I have also found no fault in how the Council made its decision regarding food for Mr Y’s live-in carer. Its policy says it will not allow DRE payments for the cost of meals for a live-in carer. While I understand the Council had previously allowed this expense its policy has now changed. I cannot find the Council at fault for applying its policy.
- Miss X has questioned the Council’s decision to only allow for Mr Y’s windows to be cleaned twice a year, as per its policy unless there are exceptional circumstances. I have not seen any evidence that Y’s circumstances were exceptional and so I do not consider there are grounds to question the Council’s view.
- NAFAO guidance says that £3.85 should be allowed in respect of laundry-related DRE costs. It does not differentiate between different laundry costs and so I do not consider there are grounds to question the Council’s view it includes wear and tear on laundry equipment.
- Miss X says the Council has refused DRE allowance for petrol for Y’s Motablity car. It allowed petrol costs to attend his neurology appointments. Miss X will need to be provide evidence to the Council of other travel that was part of Mr Y’s eligible care needs. This is also the case with other expenses such as the amount of wipes he needed to use.
- Miss X also questioned how the Council had calculated Y’s MIG. I have checked the Council’s calculation against the relevant guidance and found it to be correct.
- I have ended my consideration of this complaint as I did not find evidence of fault by the Council.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman