Summary: Mr C complained on behalf of his son, D. Mr C complained about the way the Council carried out its financial assessment and decreased D’s allowances. We found fault with the Council. The Council agreed actions to remedy the injustice to D.

The complaint

1. Mr C complained on behalf of his son, D. Mr C said the Council:
• wrongly stopped paying for some of D’s disability related expenses;
• delayed carrying out its financial assessment;
• failed to properly consider the additional information and physiotherapist recommendations; and
• failed to comply with its charging policy.
2. Mr C said D had to contribute too much money towards his care and support. The backdated payments for the contributions placed a financial burden on D.

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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. (Local Government Act 1974, sections 26(1) and 26A(1), 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 spoke to Mr C and considered the information he provided with his complaint. I made enquiries with the Council and considered its response with relevant guidance.
6. Mr C and the Council had the opportunity to comment on my draft decision. I carefully considered any comments I received before making a final decision.

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What I found

Law and guidance

Disability Related Expenditure

7. A person with a disability or long-term-health condition may incur costs arising from that condition. They may have to spend money on items and services that help them manage or cope with their disability. These costs are called Disability Related Expenditure (DRE).

Statutory guidance

8. In 2014, the Department of Health produced the Care and Support Statutory Guidance (the statutory guidance) to accompany the introduction of the Care Act 2014.
9. The statutory guidance places a duty on councils to promote the wellbeing of adults with care and support needs.
10. Annex C, Section 39 of the statutory guidance deals with DRE. It says a council must leave a service user with enough money “to pay for necessary disability-related expenditure to meet any needs which are not being met by the local authority.”
11. The guidance gives examples of expenditure that may be treated as DRE. It makes clear the list is not exhaustive.
12. It says the care plan may be a good starting point for considering what is necessary DRE. But flexibility is needed and what is DRE should not be limited to what is necessary for care and support.

What happened

13. What follows is a summary of key events. It does not contain all the information I reviewed during my investigation.
14. D has care and support needs. The Council reviewed his care and support plan. In 2020 it carried out a financial assessment to decide the contribution D needed to make.
15. Following the financial assessment D’s contribution increased from £80.08 to £128.16 per week.
16. Mr C wrote to the Council. He asked it to increase the DRE allowance to include the cost of D participating in activities. He said the Council previously gave an allowance for the activities
17. He said these should be allowed as DRE because the activities were included in D’s support plan.
18. The Council said none of the activities could be allowed as DRE under its charging policy. It said the activities were recorded in D’s support plan because there was a timetable of how D spent his time. It also said the clinical care governance group (CCG) funded seven hours of physiotherapy per week.
19. Mr C was unhappy with the response and complained in April 2021. He said the Council had previously allowed the activities as DRE. He also complained the Council had delayed carrying out the financial assessment, which started in June 2020 but was not completed until September 2021. He said the backdated contribution increase caused a bill of £1812.80.
20. The Council responded in May 2021. It said there was no evidence the activities were “deemed to be essential to D’s health and wellbeing”. It did not uphold Mr C’s complaint.
21. Mr C was unhappy with the response and complained the Ombudsman in July 2021.
22. In October 2021 the Council wrote to Mr C again. It said it reviewed the decision to backdate the increase in D’s contribution. It found:
• The officer who completed the review in July 2020 failed to ask for more information about D’s activities/ DRE.
• It failed to tell Mr C (or D) about the increase in contributions in writing.
23. The Council apologised for the fault and removed the backdated charges. It told Mr C the new contribution of £128.16 still applied from 17 April 2021.

My findings

The financial assessment process

24. I found fault with the way the Council carried out its financial assessment. The Council:
• delayed completing the assessment process;
• failed to request further information; and
• failed to write to Mr C (D) about the increase in contributions D was required to make.
25. The Council apologised for the faults and cancelled the backdated contributions. It also arranged training for the assessor.
26. This was a suitable remedy for the injustice to Mr C and D. I do not have anything further to add to this part of the complaint.

The DRE and essential expenditure allowance

27. I found fault with the way the Council decided to change D’s DRE and essential expenditure allowance when it carried out its financial assessment in 2020/1.
28. The table below shows the difference between 2019 and 2021:

29. I asked the Council to explain the difference in DRE/ essential expenditure allowance. It said:

“Due to a system change in February 2017 the FAB Team Manager is unable to identify exactly what was previously allowed. It was all grouped together and described as special therapy treatments totalling £37.76 a week”.

30. In its complaint response the Council told Mr C:
     

“I regret to advise that none of the activities (listed) above can be allowed as disability related expenses under Gloucestershire County Council’s charging policy”.

31. There is no reference to what activities are, or are not, allowed as part of the Council’s charging policy. There is also no reference to the essential expenditure criteria.
32. It is not for the Ombudsman to say whether the Council should, or should not, treat the cost of activities as DRE or essential expenditure. We look whether there was fault with the way the Council made its decision.
33. Section 40 of the statutory guidance does not include activity fees as possible DRE expenses. However, this is not an exhaustive list. The same section of the statutory guidance also says that “any reasonable costs directly related to a person’s disability should be included”.
34. The Council previously allowed some, or all, of the activity costs as DRE and/ or essential expenditure. Therefore, the Council should be able to evidence and explain its decision to no longer allow these activities. If it previously found the activities were DRE or essential expenditure it should be able to demonstrate how, and why, it no longer considers them to be and why it will no longer include them as such.
35. The change in allowances increased D’s financial contribution. D is now paying for activities and does not receive the allowance he previously had towards the activities.

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Agreed action

36. Within one month of my final decision the Council agrees to:
• Review its decision to remove D’s essential expenditure allowance and decrease his DRE. It should be able to evidence how it reached its decision and what information it considered. It should obtain information about what activities it previously allowed and why it is no longer willing to include them in D’s allowances.
• If, as a result of the review, it decides to increase D’s allowance it should backdate this to April 2021.
37. Within two months of my final decision the Council agrees to:
• Review its guidance on DRE and essential expenditure in light of the issues identified in this statement.

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Final decision

38. I found fault with the Council causing injustice.

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Investigator's decision on behalf of the Ombudsman