Summary: The Council’s assessment of whether garden maintenance charges should be allowed as a disability related expenditure was at fault as it was not clear if the Council had adequately considered the extent of maintenance needed. Reassessing the expenditure and backdating any changes remedies any financial injustice. There was no fault in the Council’s consideration of other expenditure or its financial assessment.

The complaint

1. The complainant, whom I refer to as Ms X, complains the Council has not included expenses for maintenance and tidying of her yard and front garden as Disability Related Expenditure. She also complains the Council has not included all Disability Related Expenditure in its assessment.
2. Ms X says the Council has increased her financial contribution by a greater amount than her benefit increase. She says this has caused her financial hardship.

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The Ombudsman’s role and powers

3. 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)
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. I read the papers put in by Ms X and discussed the complaint with her.
6. I considered the Council’s comments about the complaint and any supporting documents it provided.
7. Ms X 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

Key facts

8. Ms X receives adult social care. In 2019 the Council decided she must pay £4.03 a week towards the cost of her care. It based this calculation on a weekly income of £381. It disregarded £65.20 a week from her income to take account of extra costs Ms X incurs due to her disability (this is known as disability related expenditure – DRE). The DRE included extra laundry costs and extra costs associated with Ms X’s diet.
9. The Council increased Ms X’s care costs to £7.85 a week from April 2020. This was because her weekly income had increased to £386 a week. The Council continued to apply a DRE of £65.20 a week.

Garden maintenance

10. Ms X disagrees with the Council’s decision not to include a £20 a month for garden maintenance. Ms X says that she has a yard at the front and back of her house that her gardener weeds and sweeps up leaves. She does not think the fact that her garden is not large, does not mean she cannot claim for the costs of maintaining it, which she cannot do due to her disability.
11. The Council says it has not accepted this as a DRE. The Council says that it believes the allowance already made for cleaning (of £14.40 per week) would cover the small charges for maintaining a paved yard. The Council has said that it has taken Ms X’s circumstances into account in reaching this conclusion. I can see from the Council’s assessment of DRE that £14.40 is for one hours domestic cleaning.
12. I have looked at pictures of similar houses to Ms X’s on estate agents websites. I accept that Ms X’s front yard is tiny, however while the rear yard is small it is, I think, of a size likely to need some maintenance even if paved. So, I have to consider whether the Council has considered all the information available before making a decision on this point.
13. The Council’s response to Ms X’s complaint said that ‘its records showed that her property had a paved area and not a garden space which would need regular maintenance. If Ms X wanted to provide evidence of the maintenance needed, the Council could consider whether these would fall within acceptable expenditure for DRE’. There has also been some confusion as the Council said in an email to the Ombudsman ‘our finance team has advised that when considering expenses for gardening, they were informed the gardening costs related to maintaining a piece of land at the back of Ms X’s property (not owned by Ms X), rather than Ms X’s own yard’.
14. On balance, I do not consider there is enough evidence the Council has properly considered the maintenance required of Ms X’s yard and whether the £20 per month should be allowed as a DRE. There has been confusion over the area Ms X was maintaining and the Council has said in its recent response that Ms X should use money that is has allowed for domestic cleaning towards yard maintenance. The Council has not taken into account whether her cleaners would carry out yard maintenance and whether one hour per week would be enough to carry out all the tasks needed. I have not seen Ms X’s yard, but if weeding between paving stones or moss removal is needed then I do think it was fault not to assess whether the tasks required could be carried out, along with the cleaning, within one hour. I recommend the Council reassesses whether garden maintenance costs are allowable as DRE and backdates any changes it makes. The Council is entitled to reach the same decision, that the garden maintenance is not allowable as a DRE, but this will give Ms X the reassurance the decision is properly made.

Other DRE

15. Ms X complains the Council has not included all Disability Related Expenditure in its assessment. The Council has accepted a range of costs as a DRE which include costs for laundry and a special diet. Ms X has said the Council has not considered the following expenses:
• Toiletries. Ms X says that she uses extra shower gel for showering and toilet roll due to incontinence which has the Council has not included in her DRE. The Council has said that Ms X has a weekly personal allowance of £151.45 for buying toiletry items as well as DRE for incontinence related-costs of £49.54 per week. I can find no evidence on fault on this point. The Council has considered Ms X’s view but reached a decision the allowances already made are enough. 
• Extra petrol costs. Ms X says that her petrol costs are above that of the mobility element of her Personal Independence Payment (PIP) of £62.25. The Council has said that as Ms X has not provided information to evidence weekly petrol costs at this level, or evidence why petrol costs at this high level are needed, no further allowance has been made. I find no evidence of fault on this point. If Ms X wants to pursue this, then she needs to provide the Council with evidence to support her need for the petrol costs.
• Special diet and dietary supplements. Ms X complains the Council has reduced the DRE for her dietary supplements to £1.26 per week. The Council has said that it considers these are the costs for which these supplements can be purchased at the most cost effective price. I can find no evidence of fault on this point. The Council has considered Ms X’s expenses and decided the amount of DRE to allow. I appreciate that this is not what Ms X wants, but as there is no fault leading up the decision it is a decision the Council is entitled to make.
• Extra washing costs. Ms X says the Council has not allowed for her extra costs of detergent. The Council has said it has allowed £10.03 per week for laundering duvets plus extra laundry costs, as well as £5.77 a week for water rates. I can see no evidence of fault on this point, the Council has considered Ms X’s costs and reached a decision aware of all the relevant information.

Increased contribution towards care costs

16. Ms X complains the Council has increased her financial contribution by a greater amount than her benefit increase.
17. The Council has said that amount of benefits it used to calculate Ms X’s contribution for the previous year was less than Ms X got. The Council has said that this meant Ms X paid slightly less than she should have for the previous year. The Council has said that it does not intend to make Ms X pay the difference. However, it does mean that when Ms X’s charges were calculated for the next year Ms X will have seen a more significant increase in her contribution following this review. I have considered the financial assessments and there is no suggestion of fault in the way the Council worked out the increased charge. And, despite the increased charge, the increase in her income means Ms X is still slightly better off.

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Agreed Action

18. The Council reassesses whether garden maintenance costs are allowable as DRE and backdates any changes it makes within two months of the date of the decision on this complaint.

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Investigator's decision on behalf of the Ombudsman