Summary: Mrs C says the Council has failed to correctly assess charges for home support services. The Council’s assessment of Disability Related Expenditure (DRE) is flawed. To remedy the complaint the Council should clearly specify within the support plan eligible emotional and social care needs. I find no fault in the way the Council has considered Ms D’s housing costs.

The complaint

1. For confidentiality I refer to the complainant as Mrs C and her sister as Ms D. During our investigation Ms D passed away.
2. Mrs C acts on behalf of Ms D. Mrs C complains the Council has failed to correctly calculate Ms D’s charges for direct payments. It failed to:-
1. comply with the Care Act 2014;
2. take into account rent payments as an expense;
3. respond to correspondence;
4. properly consider Disability Related Expenditure;
5. account for costs involved in Ms D’s social care needs and her individual needs;
6. acted contrary to the Equality Act 2010.
3. Mrs C says because of these failings the Council has continued to pursue charges that it has not correctly calculated. This has caused her time, trouble and frustration in having to make continuous representations to the Council.

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What I have investigated

4. I have not investigated financial assessments prior to September 2018, nor issues during a period when the Council acted as deputy, for the reasons set out below.

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The Ombudsman’s role and powers

5. 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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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

8. I read information provided by Mrs C and made enquiries of the Council. I considered information provided by both parties and applied the relevant legislation, statutory guidance, and Council policy. This included:-
• Care Act 2014;
• Care and Support Statutory Guidance 2014 (CSSG);
• Equality Act 2010;
• Sunderland City Council – Contributions Policy for Adult Social Care Services (2017-2020);
• Ms D’s support plan.
9. Mrs C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

10. Ms D lived in her own home and had care staff to help with her personal and social care. She used money from the Council, called a “direct payment” to pay for the care staff.
11. Mrs C supported Ms D in the organisation of the staff and was her deputy for finances. Over the years the Council and Mrs C have disagreed about the amount of money Ms D should pay as a contribution towards her direct payment. Bar a period when the Council was Ms D’s deputy, Ms D has not contributed towards her care fees since 2009. Following Mrs C gaining deputyship for Ms D’s finances both the Council and Mrs C agreed to work together in order that the Council could calculate Ms D’s assessment of charge.
12. There have been several financial assessments the final one of which the Council completed in 2020. Mrs C continues to dispute the Council’s assessment of charge.

What should happen – General charging for social care

13. If a council takes a disability benefit into account when calculating how much a person should contribute towards the cost of their care, they must also assess Disability Related Expenditure (DRE) in the financial assessment. This is because CSSG says councils must leave individuals with enough money to pay for necessary disability related expenditure to meet any needs not being met by the council. DRE are costs that arise from a disability or long-term health condition. Councils should not be inflexible in the costs it accepts, and should always consider individual circumstances.

What happened

14. The Council completed assessments of charge on 19 September 2018 and 19 January 2020. It met with Mrs C to go through DRE on 1 February 2019.
15. There appears to be no dispute between the Council and Mrs C about the income calculations the Council completed. During the period between, and up to, the current financial assessment the Council has accepted and agreed with Mrs C most of the DRE she has claimed.
16. There are a few minor elements where there is disagreement. This includes payments towards a TV license, telephone, air freshener and incontinence pads. I consider the Council has properly considered these elements of DRE and made an allowance for the incontinence pads.
17. The two major elements of dispute are the Council’s refusal to accept rent payments as part of a legitimate expense, and not allowing additional DRE for expenses incurred to meet Ms D’s social and emotional needs.
18. For ease I have dealt with these separately outlining what happened, what the relevant guidance says, and whether there is any fault causing injustice.

Rent payments

What happened

19. Ms D lived in Mrs C’s property. Mrs C says the property was left to her by her parents. There was no issue with Ms D’s accommodation until the Council raised concerns that Ms D’s housing was not protected by a tenancy agreement. At this time Ms D was not paying rent. Mrs C says because of concerns raised she obtained advice from MENCAP who said Ms D should have the protection of a rental agreement. Based on this advice Mrs C drew up a tenancy agreement.
20. The Council refused to disregard Ms D’s rent payments as it considered she could have claimed housing benefit. The Council says housing benefit would have met the full cost of Ms D’s rent which would have left her with additional funds to pay towards her care costs.
21. Mrs C says she obtained verbal advice from the housing benefit team who said it was unlikely Ms D had an entitlement to housing benefit as it would consider the tenancy agreement as “contrived”, artificially created to gain benefit entitlement.
22. Sometime later Mrs C contacted the housing benefit team again and was told that Ms D would have an entitlement to housing benefit. Mrs C says she made a claim but when she chased its progress the claim did not appear submitted.
23. Mrs C says the Council should consider the rent payments as housing costs which the Council should disregard until housing benefit is in payment.

What should have happened

24. Paragraph 49 Annex C The Care and Support Statutory Guidance says
25. “49) The purpose of the minimum income guarantee is to promote independence and social inclusion and ensure that they have sufficient funds to meet basic needs such as purchasing food, utility costs or insurance. This must be after any housing costs such as rent and council tax net of any benefits provided to support these costs – and after any disability related expenditure. For example, a council tenant will have water rates as part of a rent service charge whilst a private or housing association tenant will not.”
26. The Council’s charging policy says at 10.3,
27. “Also for those customers who are provided with care and support at home or in the community, housing related costs can be disregarded in the calculation. These costs are:…Rent and ground rent”
28. Regulation 17(1) The Care and Support (charging and Assessment of Resources) Regulations 2014 says the Council can consider an adult to have notional income where it considers a person has,
29. “deprived themselves for the purpose of decreasing the amount they may be liable to pay towards the cost of meeting their needs for care and support, or their needs for support.”

Is there fault causing injustice?

30. The Council has an obligation to protect its resources in order that it can meet the social care needs for all its residents. I therefore consider it appropriate that it asks those receiving care to maximise their benefit entitlement. The Council can also consider someone who has failed to claim benefit as depriving themselves of income which would otherwise be available to pay towards care costs.
31. While I understand the reason Mrs C did not initially submit a housing benefit application, I am unable to criticise the Council for not taking into account rent payments. This is because the Council advised Mrs C to make an application for housing benefit which she failed to do.
32. If the benefits team refuses to make a retrospective payment of housing benefit the Council will need to reconsider its decision on whether the rent payments are an allowable expense. It will also need to review its position now that Ms D has passed away.

DRE associated with going out for meals

What happened

33. There is no dispute that Ms D enjoys going out, especially for daily meals; and is supported by her Personal Assistants (PAs). Mrs C says that going out for a meal meets Ms D’s social and emotional needs and the costs associated with this, and those of her PAs should be included as DRE. Mrs C says she would accept a DRE allowance of £45 per week.
34. Mrs C says the failure of the Council to consider expenses related to meet Ms D’s individual social and emotional needs is contrary to the Equality Act 2010 as the Council is failing to make reasonable adjustments to meet Ms D’s needs.
35. The Council says the government allows each person an amount of money to pay for their living expenses and that Ms D should budget for her meal costs. The Council says part of the direct payment is in order that PAs can support Ms D in the community but that this does not necessarily have to involve going out for a meal.

What should have happened

36. Ms D’s support plan says,
37. “Managing and Maintaining nutrition – eligible need
38. “Ms D eats out most days and she pays a contribution to the carers meals to enable the activity to take place as this is a social experience which she enjoys.
39. Achieved – “Ms D needs support to maintain her nutrition, she also enjoys social outings which do involve having food out at cafes, without support there would be a significant impact on Ms D’s physical, emotional and mental health well-being”.
40. CSSG provides councils with discretion in how to apply DRE. Annex C allows the Council to complete its own assessment about whether a person has enough funds to pay for their “necessary” DRE. It is for the Council to decide what is necessary.
41. Paragraph 41 says,
42. “The care plan may be a good starting point for considering what is necessary disability-related expenditure. However, flexibility is needed. What is disability-related expenditure should not be limited to what is necessary for care and support. For example, above average heating costs should be considered.”

Is there fault causing injustice?

43. The Council is entitled to reach a decision on whether, and to what degree it should accept payment for meals out as necessary DRE. Ms D’s support plan is however unclear on whether going out for a meal is an eligible need, which incurs a necessary disability related expense. I consider this is fault and not in line with the Care Act 2014.
44. I am unable to say now whether, but for the fault I have identified, the Council should accept, any or all of the DRE Mrs C claims; and whether when considered properly the Council’s view will change. Mrs C does however have uncertainty about whether this element of the charge is correct. She has also had time and trouble in pursuing the matter with the Council.

Challenging the charge

What happened

45. Mrs C has asked for reviews of both the 2018 and 2020 financial assessments. This has involved lengthy exchanges between the Council and Mrs C. Following charge reviews in 2018 and 2020 the contribution has remained marginally the same. During this period the Council has requested and received receipt evidence of the amounts Ms D has spent on DRE.
46. The Council has met with Mrs C to discuss the charge. Mrs C has asked the Council for further meetings which the Council has refused on the basis that they are not necessary.
47. Mrs C complains that she has spent time and trouble in providing information to the Council. Mrs C says the Council delayed in providing responses and failed to respond to her queries.

What should have happened

48. The Council’s charging policy has a review/appeal policy. It says,
49. “16.1 If a customer considers their financial assessment is incorrect or that they cannot afford to pay the assessed contribution they can ask for this decision to be reviewed and the outcome will be determined by a Senior Manager in the Social Care Financial Assessment Management Team. This can happen following the initial financial assessment or following a review, whether an annual review or because of a change of circumstances.
50. 16.2 If the customer is unhappy with the outcome of the review, the customer can request an appeal against this decision. The outcome of the appeal will be determined by an Adult Social Care Senior Manager in the Council.”

Is there fault causing injustice?

51. I am unable to find fault in the actions of the Council. It has followed the review process. While there have been some delays in responses provided to Mrs C these have not been excessive. The Council has met with Mrs C, considered verification she provided and calculated Ms D’s charge.
52. It is unclear what additional information Mrs C can provide in further meetings which she has not already provided. I am therefore unable to criticise the Council for not arranging further meetings.

Care Act 2014 and Equality Act 2010

53. Mrs C says the Council has failed to follow the Care Act 2014 and the Equality Act 2010.
54. The Care Act 2014 and CSSG set out local authorities’ duties in relation to assessing people’s needs and their eligibility for publicly funded care and support.
55. The Equality Act came into force on 1 October 2010. The Act provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It provides the UK with discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society.
56. The Ombudsman’s remit does not extend to making decisions on whether a council has breached the law – this can only be done by the courts. The Ombudsman can make decisions about whether a council has had due regard to the law.
57. In this statement I have commented on where I think the Council has not acted in line with the Care Act 2014. Mrs C says the Council has not acted within the Equality Act 2010 when making decisions about Ms D’s DRE. The Council completed an assessment of Ms D’s DRE which considered Ms D’s disability, while as stated above there was a failure to refer to Ms D’s care plan I am unable to say the Council’s actions were not in line with the Equality Act 2010.

Agreed action

58. I consider the Council is at fault for failing to properly consider whether going out for a meal is a DRE based on an eligible need. In order to remedy the complaint the Council has agreed to:-
1. apologise to Mrs C for the uncertainty caused by its failure to properly consider Ms D’s DRE in respect of going out for meals;
2. complete a retrospective review on whether Ms D had an eligible need for going out for meals, if she did:-
1. consider Ms D’s DRE in this respect and advise Mrs C of the outcome;
2. retrospectively apply the allowance to any accrued outstanding charges;
3. remind staff about the need to consider the support plan when assessing DRE;
4. review the charging policy in light of the findings of this statement in particular at looking at the support plan as a starting point for considering DRE.
59. The Council should complete (a) to (b) within one month of the final decision and (c) to (d) within three months of the final decision.

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Final decision

60. I have found fault causing injustice. I have now completed my investigation and closed the complaint.

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Parts of the complaint that I did not investigate

61. I have not investigated matters prior to September 2018. This is because as stated above we do not usually investigate complaints where the complainant was aware of the issues for more than 12 months. I have decided not to exercise discretion to look further back than 2018 as the matters go back to 2014. Mrs C was aware of our existence and did not complain at the time. While I am aware there was a period between 2017 and 2018 when it would have been difficult for her to come to us because of court of protection proceedings I do not consider much will be gained by looking at issues before this date. In addition if the Council’s actions have affected Ms D’s charge I have asked that this is accounted for in the accrued debt which I understand precedes 2017 and includes a period when the Council acted as deputy.
62. I also have not investigated how the Council acted during the deputyship period for Ms D’s finances. This was dealt with in a previous complaint 19007952. However as stated above if there is a change in charge I have recommended that this is backdated and offset against any outstanding debt.

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Investigator's decision on behalf of the Ombudsman