Summary: Mrs B complained about the Council’s assessment of her needs, consideration of her disability related expenditure and issuing an invoice for backdated charges. The Council’s assessment of Mrs B’s needs and decision to issue a backdated invoice was not affected by fault. The Council considered the majority of Mrs B’s disability related expenditure properly but did not properly consider her request for additional petrol and laundry costs. An apology to Mrs B and arrangement for a further appeal panel to consider those two issues is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, is represented by Mr C. Mr C complained the Council:
• failed to award an amount to enable Mrs B to maintain her home when she is unable to do so;
• unreasonably refused to consider costs for maintaining the home as disability related expenditure;
• failed to include various costs in her disability related expenditure; and
• issued an invoice for backdated charges when she has no means to pay it without reducing the provision she is assessed as needing.
2. Mr C says fault by the Council means Mrs B is having to pay more towards her care charges than she should have to.

Back to top

The Ombudsman’s role and powers

3. 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. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mrs B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) and 34(3)
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)

Back to top

How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and Mr C's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

Back to top

What I found

What should have happened

8. The Care and Support Statutory Guidance (the guidance) says when carrying out a care assessment local authorities must consider all the adult’s care and support needs, regardless of any support provided by a carer. Where the adult has a carer, information on the care they are providing can be captured during assessment but must not influence the eligibility determination. After the eligibility determination has been reached, if the needs are eligible or the local authority otherwise intends to meet them, the care which a carer is providing can be taken into account during the care and support planning stage. The local authority is not required to meet any needs which are being met by a carer who is willing and able to do so, but it should record where that is the case. This ensures the entirety of the adult’s needs are identified and the local authority can respond appropriately if the carer feels unable or unwilling to carry out some or all of the caring they were previously providing.
9. North East Lincolnshire Council’s charging and financial assessment for adult care and support services (the Council’s policy) says it will undertake a financial assessment to decide how much an adult can contribute towards the cost of their care and support. It says where the adult is in receipt of a qualifying benefit the Council will also consider disability related expenditure.
10. The Council’s policy says the definition of disability related expenditure in the statutory guidance is:
• needs not met by the Council;
• reasonable additional costs directly related to a person's disability or necessitated by their disability.
11. The Council’s policy says when considering what to allow as disability related expenditure the Council will use the adult's care plan as a starting point. It says the Council has largely adopted the approach set out by the National Association of Financial Assessment Officers in developing an approach to disability related expenditure. The Council says with regard to the following common expenses it anticipates that reasonable additional costs directly related to the person's disability can be met within the following limits:
• social activities up to a maximum of £50 per week
• gardening up to a maximum of £15 per week
• window cleaning up to a maximum of once per month
12. It says higher claims in those areas must be accompanied by clear rationale as to why this is justified and that will be submitted to the appeal panel. It says there is no intention to fetter discretion or set arbitrary limits but rather to ensure all appropriate matters have been taken into account before apparently costlier claims are endorsed.
13. It says the Council will generally not allow disability related expenditure where there is reasonable alternative available at lesser cost (where the lesser cost would be allowed) or where costs could be met by other agencies such as the NHS.
14. The Council’s policy says it will consider disability related expenditure allowances outside of its policy where individual circumstances may warrant a departure from it and this will be decided by the appeal panel.
15. The Council’s policy sets out what it will consider for various potential areas of disability related expenditure. That includes comparing fuel bills to the areas average fuel bills, private domestic help, laundry/washing powder, a clothing allowance, social activities and petrol costs. The Council’s policy says for laundry/washing powder the Council will award £3.92 per week where the care plan has identified an incontinence problem requiring more than four loads per week. For petrol the policy says a maximum of £12.50 per week is allowable for essential trips and anything above that can be presented to the appeals panel.

What happened

16. Mrs B has partial paralysis and other medical conditions due to a stroke. Mrs B lives in a fully adapted living area on the ground floor of Mr C’s house. The Council provides Mrs B with carers as well as a direct payment for one-to-one support for a PA to take Mrs B out into the community, one hour support each day to enable Mr C to have a break from his caring role and four weeks residential respite care per year. Until 2019 Mrs B did not have to contribute towards the cost of her care.
17. In January 2019 Mrs B was awarded the severe disability premium. The Council did not know about that award until January 2020. The award of a severe disability premium resulted in Mrs B having to contribute towards her care. Mr C provided the Council with details of Mrs B’s disability related expenditure which he asked the Council to take into account when calculating Mrs B’s contribution to care. That reduced the amount Mrs B had to pay towards her care but still left her having to pay £25.48 per week. That was backdated to the beginning of January 2019 which resulted in the Council sending Mrs B an invoice for the arrears. The Council also awarded Mrs B an amount to reflect her accountancy costs in relation to employing her PA’s. The Council included that as a weekly payment and paid Mrs B a one-off payment to reflect the costs in 2019.
18. Mr C challenged the Council’s calculation of Mrs B’s disability related expenditure. The Council arranged an appeal panel which considered the case in September 2020. The appeal panel awarded some additional disability related expenditure but did not allow all of it. Mr C challenged that decision. Another appeal panel considered the case in November 2020 and did not make any changes. Mr C put in a request for a review. The Council’s review panel considered the case in January 2021 and did not make any changes.

Analysis

19. Mr C says the Council failed to an award an amount to enable Mrs B to maintain her home when the Council is aware she is unable to do that. I have considered the various assessments the Council has completed since February 2019. In each assessment the Council notes Mr C maintains the home environment and Mrs B therefore has no unmet needs in this area. The Council will only put in place support for those areas where Mrs B has an unmet need. As the Council was satisfied at each assessment Mr C was able to maintain Mrs B’s home I cannot criticise the Council for not putting in place support for that as it was not identified as an unmet need. I therefore have no grounds to criticise the Council.
20. Mr C says as the Council did not include provision for maintaining the home as part of Mrs B’s support plan it should have treated the costs of doing so as disability related expenditure. I am satisfied though the Council has included in Mrs B’s disability related expenditure £5 to reflect the costs of cleaning Mrs B’s room and windows. I am therefore satisfied the Council has taken this disability related expenditure into account.
21. Mr C says the Council failed to include all Mrs B’s disability related expenditure when calculating her contribution to care costs. Mr C is particularly concerned the Council refused to include an amount to reflect the fact Mrs B has to have the heating on all the time, has awarded an insufficient amount for petrol, has not allowed sufficient provision for social activities, has not allowed enough for laundry costs, has refused to include ironing costs, failed to include an allowance for paying accountants to oversee payments to carers and refused to consider the cost of PPE for Mrs B’s PA’s.
22. As I said in paragraph 3, the Ombudsman’s role is to consider the administrative process followed by the Council. Only if there is fault in the administrative process can the Ombudsman comment on the merits of decisions reached. The Ombudsman is not a route of appeal. So, it is not the Ombudsman’s role to decide whether the Council should have included these disputed elements in Mrs B’s disability related expenditure. Nor is it the Ombudsman’s role to consider how much the Council should have allowed. Rather, the Ombudsman’s role is to consider whether there is fault in the way in which the Council reached its decisions in the case.
23. For heating costs, I am satisfied the Council decided at an early stage not to award an amount for this. I am satisfied the Council decided not to award an amount as Mrs B’s annual fuel bill is not higher than the average for a property occupied by two people. As that is in line with the Council’s policy I have no grounds to criticise it.
24. For the issue of the accountancy fees, I am satisfied the Council awarded an amount to reflect the cost of the accountancy fees in 2020. I am also satisfied the Council awarded a one-off payment to reflect the accountancy fees in 2019. I therefore have no grounds to criticise the Council here.
25. I am satisfied the Council’s appeal panel has twice considered Mrs B’s request for inclusion of the items listed in paragraph 21 in her disability related expenditure. I have considered the information presented to those two panel meetings as well as the notes from the meetings themselves and the letters to Mrs B telling her about the decisions. For the requested amounts for social inclusion and ironing I am satisfied both panels properly considered those matters before deciding not to award an amount. As there is no fault in how the panels considered those two matters I cannot criticise the Council for the decision reached.
26. I am concerned though with how both panels approached the issue of petrol and laundry and with how the second panel approached the issue of PPE. For petrol and laundry both panels decided not to award an additional amount as the Council had already allowed the maximum. However, the Council’s policy makes clear although the policy states a maximum the appeal panel can consider amounts above the maximum. That is also what the Ombudsman would expect the Council to do as setting a maximum amount and then not considering whether a case justifies an extra amount is likely to be treated as fettering discretion, which the Council’s own policy notes. There is no evidence in either appeal panel hearing the panels properly considered whether Mrs B had put forward a strong enough argument to justify an increase in the amount allowed for disability related expenditure for petrol and laundry. Failing to properly consider that and relying on the maximum set in the policy appears to be a fettering of the Council’s discretion and is fault.
27. For the petrol costs, I recognise the letter telling Mrs B about the second panel’s decision goes into more detail about the panel’s reasoning for not awarding an additional amount. I am concerned the reasoning set out in the Council’s letter following the second appeal does not reflect the notes from the appeal hearing. In any event, the Council’s letter following the second appeal, when addressing the petrol issue, confuses it with the amount awarded for social interaction and inclusion as both are included under the heading of ‘petrol.’ As Mr C had put forward reasons as to why he had asked the Council to consider awarding extra petrol costs, based on Mrs B’s circumstances, I would have expected the Council to address that point in the appeal hearing and there is no evidence it did so. That, plus the confusing of the two issues in the Council’s letter responding to the second appeal is fault.
28. I am also concerned about how the second appeal panel dealt with the issue of PPE. By that point Mr C had provided more information about why Mrs B was asking for PPE costs to be included as disability related expenditure. That related to the fact that Mrs B employs two PA’s who are family members, separate to the provision she receives from a care company. Mr C explained as Mrs B employs the PA’s it is therefore her responsibility to provide PPE equipment for them. So, he asked the panel to include an amount in Mrs B’s disability related expenditure to reflect that cost. There is no evidence either in the appeal hearing notes or the decision following the appeal to suggest the Council considered that point. Failure to do that is fault.
29. I recognise the Council completed a review following those two appeals. That review did not include consideration of the laundry costs and my draft conclusions in relation to that point are therefore unaffected by the review. For the issue of petrol, the Council’s letter following the review makes clear the policy will only provide petrol allowance for essential journeys. However, the letter also says the maximum allowance has been given. This again reads as a fettering of the Council’s discretion and there is no evidence the Council considered whether additional petrol costs were justified in Mrs B’s case. I therefore remain of the view that despite two appeals and one appeal review there is no evidence the Council considered the issue of additional petrol costs properly.
30. The review panel considered the issue of PPE. The review panel explained in its decision letter that PPE supplies could be secured through PASS and provided Mrs B a contact number to arrange for a supply. This is different to the information the Council received from PASS when Mr C first queried it in 2020. The Council has now provided evidence though that PPE is available from PASS for those employing PA’s as part of a direct payment. I therefore cannot criticise the Council for not including PPE in Mrs B’s disability related expenditure.
31. So, based on the evidence I have seen so far I am not satisfied the Council properly considered the request for additional petrol and laundry costs to be included in Mrs B’s disability related expenditure. I therefore recommended the Council apologise to Mrs B and Mr C and arrange a further appeal hearing to consider those two points. The Council should ensure the appeal panel have access to the information Mr C provided to both appeal panels and for the review in relation to those points. The Council should then write to Mrs B following the appeal hearing to advise of its decision. The Council has agreed to my recommendation.
32. Mr C says the Council should not have issued Mrs B with an invoice for more than £2,000 when she has no means to pay it without reducing the provision she is assessed as needing. Having considered the documentary evidence I am satisfied the issue with the invoice arose because Mrs B was awarded a severe disability premium in January 2019 and the Council did not find out about that until January 2020. Due to the award of that premium Mrs B became liable to pay towards her care costs. I understand Mr C’s frustration about receiving a backdated bill. However, as the Council did not know about the award of the severe disability premium until January 2020 I cannot criticise it for issuing a backdated invoice. I am satisfied though the Council offered Mrs B the opportunity to agree a repayment plan for the amount owed rather than paying in full. That is what the Ombudsman would expect the Council to do. As I have found no evidence of fault by the Council causing a backdated invoice to be received I have no grounds to criticise it. I recognise though recovery of the underpaid amount is currently on hold pending the outcome of my investigation. As the Council has agreed to hold a further appeal panel to consider petrol and laundry costs I recommend the Council keep the recovery of the underpaid amount on hold until that process is completed in case that affects the amount outstanding.

Back to top

Agreed action

33. Within one month of my decision the Council should:
• apologise to Mrs B and Mr C; and
• arrange for a further appeal panel to consider the request for extra petrol and laundry costs.
34. Following that appeal panel the Council should write to Mrs B to tell her its decision.

Back to top

Final decision

35. I have completed my investigation and found fault by the Council in part of the complaint which caused Mrs B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

Back to top

Investigator's decision on behalf of the Ombudsman