Summary: There was some fault in the way the Council carried out a financial assessment of Ms B to determine Ms B’s contribution to her care costs. The Council has agreed to apologise to Ms B and carry out a further assessment.

The complaint

1. Ms B says the Council has not properly considered her disability related expenditure in its assessment of her finances.

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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. 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

4. I have discussed the complaint with Ms B. I have considered the evidence that she and the Council have sent, the relevant law, guidance and Council’s policies and both sides’ comments on the draft decision.

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What I found

5. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge. The Council also has its own policies.

Financial assessment

6. Councils must carry out a financial assessment if they decide to charge for the care and support. This will assess the person’s capital and income.
7. The charging rules are different depending on whether the person receives care and support at home or in a residential setting.
8. I have set out the rules relevant to receiving care at home.

Minimum income guarantee

9. When a council assesses a person’s income, they must ensure that the person is left with the minimum income guarantee (MIG) after charges have been deducted.
10. The purpose of the MIG is to ensure that a person has sufficient funds to meet their 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.

Disability related expenditure (DRE)

11. The Guidance says that where disability-related benefits are taken into account, the local authority should allow the person to keep enough benefit to pay for necessary disability-related expenditure to meet any needs which are not being met by the local authority.
12. There is no exhaustive list of DRE, but the Guidance has examples of specialist items needed to meet a person’s disability needs which include:
• additional costs of special dietary needs due to illness or disability (the person may be asked for permission to approach their GP in cases of doubt)
• special clothing or footwear, for example, where this needs to be specially made; or additional wear and tear to clothing and footwear caused by disability
• in other cases, it may be reasonable for a council not to allow for items where a reasonable alternative is available at lesser cost.

What happened

13. Ms B lives at home and receives a package of support funded by the Council.

Financial assessment – September 2020

14. The Council carried out a financial assessment of Ms B in September 2020. The Council took into account Ms B’s benefits income and disregarded the PIP daily living and the mobility element. It allowed DRE of £11.89 to buy specialist equipment and said Ms B would have to contribute £92.31 a week to the cost of her care package.
15. The finance officer noted on the assessment:
• ‘The following DREs have not been taken into account due to services not being used by the service user at present. Please advise when these services resume and, if receipts are produced, they may be considered: gardening, chiropractor and chiropodist.’
16. Ms B said she had DREs related to specialist footwear and dietary requirements. She said she was lactose and glucose intolerant and had to eat organic food and extra protein because of her health conditions.

Letter from GP – 29 October 2020

17. Ms B’s GP wrote to the Council on 29 October 2020. The GP said the NHS would not fund the following:
• ‘Footwear – [Ms B] does not require custom made shoes so she would be expected to purchase these herself.’

Email from dietitian – 13 November 2020

18. The social worker sent an email with some questions about Ms B’s diet to Ms B’s dietitian:
• Are there foods which Ms B is not permitted to eat? Answer: Yes, but these vary.
• Does Ms B have an intolerance to preservatives which would require her to only eat organic produce? Answer: ‘This is unproven, however her reporting is that she is better tolerant of preservative-free foodstuffs. It has not been scientifically evaluated and that would definitely be beyond my experience and remit.’
• Is Ms B required to eat an increased amount of protein? Answer: ‘I am not aware that she has to eat an increased amount of protein. Again, there is a proviso related to tolerance as protein based foods seem to be better handled by her constitution.’
• Is Ms B gluten/lactose intolerant requiring her to source alternative diary products? Answer: ‘That is my understanding. Intolerant, but not allergic.’

Financial assessment - 8 November 2020

19. The Council re-assessed Ms B on 8 November 2020 and allowed DREs for chiropody, gardening and window cleaning.
20. The finance officer also allowed the following costs:
• Chiropractor – one session at £32 per month.
• The officer allowed an extra £2.37 per week for dietary needs as Ms B could not eat lactose so had to eat more expensive dairy substitutes. The officer did not allow the other food items Ms B requested as they were ‘part of a healthy diet, the volume of food purchased being a choice, buying organic food is also a choice as is which shop the food is purchased from. This includes meat purchased from the butcher.’
21. The DRE was increased to £32.72 per week and her contribution was £71.48 per week.

Financial assessment – 18 November 2020

22. The Council carried out a further assessment on 18 November 2020 and said:
• They received additional evidence from the chiropractor that the frequency of visits was fortnightly so it increased the DRE for chiropractor sessions to £32 every fortnight.
• In terms of dietary needs, Ms B previously followed the FODMAP diet, but no longer did so. (My note: FODMAP is a restrictive diet which cuts out wheat, rye, legumes, dairy and certain fruits and vegetables which are associated with triggering digestive symptoms).
• Ms B’s dietitian said it had not been scientifically proven that Ms B needed a preservative free diet or that there was an additional need for protein. The dietitian had confirmed Ms B had a dairy intolerance so the finance officer had allowed the additional expense of dairy free alternatives as a DRE.
• ‘Based on the evidence submitted I am satisfied that there is not an additional food cost based on her current dietary requirements.’
• The officer did not allow the cost of shoes as a DRE because: ‘Evidence from GP clearly states custom made shoes are not a requirement and she would be expected to purchase these herself.’

Ms B’s appeal – 25 December 2020

23. Ms B appealed the decision on 25 December 2020 and said (I have only included those costs that are still in dispute):
• Diet. Ms B said the true cost of her diet and personal care had not been accurately calculated partly because she had stopped shopping appropriately for her needs. She had bought a months’ worth of household stuff and attached the receipts. This showed her weekly shop was £172.76.
• Footwear. Ms B said she had a medical condition which meant she needed to buy shoes with arch support and attached evidence from a Biomechanics centre.
• She needed to take pre and probiotics. She had recently found out that she was resistant to a lot of antibiotics and only the strongest ones now worked. Her GP had recommended that she take regular pre/probiotics to prevent C.diff. (My note: C. diff is a type of bowel infection which commonly affects people who have been treated with antibiotics.) Ms B said that she could not take any pre/probiotics with dairy because of her dairy intolerance. She had found a pre/probiotic but it cost £85.95.
24. Ms B provided the following evidence:
• An email from a registered NHS dietitian at the hospital dated 17 December 2020 who said:
1. Ms B suffered from a condition called Mast Cell Activation Syndrome (MCAS). This meant that certain foods stimulated an allergic response causing nausea, vomiting, diarrhoea, itching and other symptoms. This meant Ms B had ‘significantly limited food options available to her’.
2. Ms B reacted ‘least to organic foods, but even then her options were limited. It is important that [Ms B] meet her daily 120g protein intake. This is because she had recent surgical interventions, and the protein is essential for wound healing, and to prevent muscle-protein breakdown. Any help in facilitating these requirements would be greatly appreciated.’
• A note of a telephone call from Ms B’s GP to Ms B dated 18 December 2020 which said that pre/pro biotics reduced the risk of C. diff. The note said: ‘this is not available on prescription but is recommended with evidence behind it for people who need lots of broad spectrum antibiotics’.
• A letter from a Biomechanics company dated 16 December 2020 which said Ms B needed specialised footwear with firm soles and/or a reinforced central section. Such footwear could be bought from specialist manufacturers and would cost £90 on average although there were some high street ranges which were acceptable. Orthotics/arch support would be approximately £100 or £290 for polypropylene orthotics with a ten-year guarantee.
• Receipts for visits to the chiropractor (£32 a visit) on 10 July 2020, 25 August 2020, 11 September 2020 and 24 September 2020.
• Receipts of evidence of organic food purchases.

Council’s response – 11 February 2021

25. The Council responded to Ms B’s appeal on 11 February 2021 and said:
• Ms B had provided evidence of chiropractor visits and this had been included as a DRE.
• Ms B had provided evidence that her weekly food budget was £170. However, the Council said the current spending was not representative of her historic spending. In addition, the dietitian had said there was no scientific evidence that Ms B needed to eat organic food.
• The GP had said that Ms B did not require any specialist footwear. The evidence from the Biomechanics was that Ms B could buy some shoes on the high street and the cost of these shoes was not more expensive than normal footwear of reasonable quality.
• In terms of the pre/probiotics, the Council said it was not clear from the note from the GP whether these were a definite medical need or just a general recommendation. There was also no confirmation whether any specific type of supplement would be available on the NHS to Ms B. The Council said there were potentially cheaper alternatives available. The Council said it was not in a position to allow this expenditure but would reconsider it if Ms B was able to obtain more clarification from her GP on the questions the Council had raised.

Ms B’s complaint to the Ombudsman

26. Ms B has taken her complaint to the Ombudsman. She has provided this additional information:
• In terms of the diet, she said the receipts she sent were representative of her expenditure, but the problem was that she had spent 18 weeks in hospital prior to this so her costs had been a lot lower. She said the Council had previously allowed £90 per week for food.
• She had not been able to go to her chiropractor because of the Covid-pandemic so her spend last year was not representative of her real spend. She said she would need to go twice a week for approximately six weeks to stabilise her joints and then probably every week. At the last assessment the officer accepted that Ms B needed to see her chiropractor once a week.
• The specialist shoes she had to buy cost between £65 to £72. She disputed that this was what most people spent on shoes, particularly if they had to live within a budget.
• She was aware that there were cheaper pre/probiotics but she was not sure whether she would have an allergic reaction to these.

Further information

27. As part of my investigation I asked the Council why it had changed its position on the DRE for diet and footwear.
28. The Council said that in 2016 Ms B’s GP confirmed Ms B was on the FODMAP diet. At the time the Council allowed £30.87 for the FODMAP diet.
29. During the 2017 review, the finance officer did not ask for any additional GP evidence and compared Ms B’s spending on food with the ONS figures. This led to a DRE of £79.62. However, there was no evidence that the additional spend was DRE or that Ms B was still on the FODMAP diet.
30. During the most recent review in 2020, the officer relied on the dietitian’s email dated 13 November 2020 which said there was no scientific evidence that Ms B had to eat organic food or high levels of protein. There was evidence for the additional cost of dairy free food which the Council allowed as DRE.
31. The GP had confirmed that Ms B did not need specialised footwear in her letter dated 29 October 2020 and this was the reason the Council refused this cost as a DRE.
32. I said Ms B was concerned that the Council reduced the DRE for chiropractor sessions and electricity based on her expenditure in 2020, but this expenditure was lower than usual because of the Covid restrictions and because she spent 22 weeks in hospital during that year.
33. The Council said it had based her electricity on her bill of 27 October 2020 and projected forward, rather than on the actual usage of the last 12 months which was lower.
34. In terms of the chiropractor sessions, the Council said it had allowed some DRE for this, but Ms B was not having the treatment because of lockdown. It said it would review this spend once the service resumed.

Analysis

35. The Ombudsman cannot carry out a financial assessment or say what Ms B’s contribution should be. I have considered whether the Council has considered the law, guidance and policies and relevant information.
36. The Council’s overall approach in the financial assessment was to consider:
• Was there evidence that the expenditure was disability related?
• If the first test was met, was there evidence of the expenditure?

Electricity

37. The Council accepted additional electricity cost as a DRE, but Ms B was concerned that she could not provide evidence of the cost during the last year, as she had spent a lot of time in hospital.
38. I have not found fault in the way the Council assessed the electricity. The Council has based the cost on October 2020 which should be representative of Ms B’s real costs. It has not based the cost on the entire year of 2020 as it accepted that Ms B had been in hospital a lot during that year.

Chiropractor

39. The Council accepted the chiropractor costs as a DRE, but only allowed a fortnightly spend as Ms B provided evidence of fortnightly spend.
40. I understand Ms B’s concerns as she says her expenditure in 2020 on chiropractor sessions was not representative of a normal year. I note however that the Council based the DRE on the expenditure during the months of July to September 2020, when Covid-restrictions were more relaxed and Ms B was able to attend chiropractor sessions.
41. I also note the Council has said that, once the service resumed, it would review the spend based on additional evidence. Therefore, I do not find fault in the Council’s approach.

Dietary requirements

42. There was fault in the way the Council considered Ms B’s dietary costs. The Council has based its assessment on the email from the dietitian dated 13 November 2020, but has not shown it properly considered the later evidence from the dietitian dated 17 December 2020. The December email explained why Ms B needed to eat organic foods linked to her MCAS and why she needed to eat additional protein.
43. Also, the Council did not fully consider the evidence in the 13 November 2020 email. The dietitian said Ms B needed to eat a dairy free and gluten free diet. The Council allowed the additional cost of dairy free substitutes but did not say how it considered the additional cost of gluten free substitutes.

Shoes

44. The Council’s assessment of Ms B’s need for specialised footwear was slightly confusing.
45. The finance officer based her decision not to allow the footwear on the GP letter dated 29 October 2020. There is no fault in this as that was the only evidence available at the time.
46. However, Ms B provided evidence in December 2020 from a biomechanics expert that she needed specialist footwear.
47. In its response to the Ombudsman the Council said it had not allowed footwear because the GP said Ms B did not need specialist footwear.
48. Firstly, that was not correct summary of the GP’s letter. The GP said Ms B did not qualify for NHS funding for footwear as she did not need custom made shoes. The GP did not comment on whether Ms B needed specialist footwear.
49. Secondly, the Council did not explain what its position was in relation to the biomechanics expert evidence relating to the footwear and why it would not allow that evidence. So, there was fault in that response.
50. The Council’s response to the Ombudsman dated 21 April 2019 also contradicted its response to Ms B dated 11 February 2021 where it appeared to have accepted the biomechanical assessment but then said that the cost of the shoes was not higher than average.
51. It is difficult for me to comment on how the Council reached the decision in relation to the cost of the footwear. Ms B’s letter did not say how often she needed to buy the specialist shoes and the Council did not say what its benchmark was for annual costs for shoes.

Pre/probiotics

52. The Council said it could not approve this cost as a DRE as it needed more information from the GP about the necessity of the pre/probiotics and whether there were cheaper alternatives which Ms B could take.
53. It is difficult to comment on why the Council felt it needed more information from the GP on the necessity of the pre/probiotics, but I accept that the note may be open to a different interpretation. In any event, I accept there was no fault in the Council’s request for more information about cheaper alternatives as the Council could take that into consideration when making a decision.

Injustice

54. Ms B has suffered an injustice as it is not clear whether the Council has properly assessed her DRE costs. I recommend the Council carries out a further financial assessment for Ms B. If Ms B’s contribution is reduced as a result of this assessment, then the Council should refund the difference between the newly calculated contribution and the contribution calculated in November 2020.

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Agreed action

55. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise in writing to Ms B for the fault.
• Carry out a further assessment of Ms B’s finances. If Ms B’s contribution is reduced because of this assessment, then the Council should refund the difference between the newly calculated contribution and the contribution calculated in November 2020.

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Final decision

56. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman