Summary: Mrs Z complains about the way the Council conducted a financial assessment for her daughter, Miss X. We have not found fault with the Council’s actions.

The complaint

1. Mrs Z complains about the way the Council carried out a financial assessment for her daughter, Miss X. Mrs Z says the Council has not properly considered some of the necessary expenditure Miss X incurs when deciding how much she should contribute towards the cost of her care and support. Mrs Z says this is causing an unfair financial strain.

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The Ombudsman’s role and powers

2. 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 an organisation’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)
3. If we are satisfied with an organisation’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 considered information provided by Mrs Z on behalf of Miss X.
5. I considered information provided by the Council in response to my enquiries.
6. Both Mrs Z and the Council had an opportunity to comment on a draft version of this decision. I considered any comments received before making a final decision.

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Relevant legislation, guidance and policy

Charging for social care services

7. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in settings other than care homes. A council has discretion to charge for non-residential care following a person’s needs assessment. Where it decides to charge, a council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 (the Regulations) and have regard to the Care Act statutory guidance (the Guidance). (Care Act 2014, section 14 and 17)

Financial assessment

8. Where a council has decided to charge, it must conduct a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. A council must not charge more than the costs it incurs to meet a person’s assessed eligible needs.

Minimum Income Guarantee (MIG)

9. People receiving care and support other than in a care home need to retain a certain level of income to cover their living costs. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by national government and reviewed each year. A council can allow people to keep more than the MIG. (Care Act 2014 )
10. The purpose of the MIG is to promote independence and social inclusion and ensure a person has 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.

Disability Related Expenditure (DRE)

11. Where a council takes disability-related benefit into account when calculating how much a person should contribute towards the cost of their care, it should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs the council is not meeting. The Care and Support Statutory Guidance sets out a list of examples but says any reasonable additional costs directly related to a person's disability should be included. What counts as DRE should not be limited to what is necessary for care and support. For example, above average heating costs should be considered.

The Council’s policy

12. The Council’s Charging Policy for Social Care and Support (the Policy) sets out how the Council charges people who receive care and support. It covers all care services arranged by the Council for individuals living in residential and non-residential settings. The Policy explains the Council’s approach to the MIG and DRE.
13. On the MIG, the Council’s Policy says:

“The Council will ensure that a person’s income is not reduced below the equivalent of the value specified by central government in the Care and Support (Charging and Assessment of Resources) Regulations 2014.”

14. It also says:

“The MIG will be calculated after housing costs such as rent and Council Tax (net of any benefits provided to support these costs) and after any disability related expenditure”

15. On DRE, the Policy says:

“Where Attendance Allowance, Disability Living Allowance or Personal Independence Payment is taken into account as income, the Council will allow the service user to keep enough of the benefit to meet the costs of necessary disability-related expenditure which is incurred to meet needs which are not being met by the local authority.”

16. It also says:

“Disability-related expenditure can include any reasonable additional costs directly related to a person’s age, medical condition or disability”

17. The Policy provides examples of DRE. These examples include:
• extra heating costs;
• laundry costs;
• special dietary requirements; and
• reasonable transport costs, over and above the mobility component of Disability Living Allowance (DLA) or Personal Independence Payment (PIP) where one has been awarded.
18. The Policy says where a service user disagrees with the assessed contribution on the grounds it conflicts with the Policy or the Guidance, they can request a review. If the service user still disagrees with the outcome, they can lodge an appeal against the decision.

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What I found

Background

19. What follows is a summary of the key events that led Mrs Z to refer her complaint to the Ombudsman. It is not intended to detail every exchange between the parties involved.
20. Miss X lives at home with her mother, Mrs Z, and other members of her family. Because of her health conditions, the Council has assessed Miss X as having eligible support needs. Miss X attends a day centre three days a week as part of her care and support plan.
21. Miss X’s income is made up of the benefits she receives. In late 2018, the Council assessed Miss X’s finances, resulting in Miss X having to make a financial contribution towards the cost of her care and support. Before this, Miss X did not have to make a financial contribution. Mrs Z asked the Council to review this assessment of Miss X’s finances.
22. The Council explained how it had made its decision. It said Miss X now needed to make a financial contribution because of an increase in her assessable income. This was the income the Council considered when deciding how much Miss X could afford to contribute towards the cost of her care. The Council said the Employment Support Allowance (ESA) Miss X received had increased in 2017, but the Council had not been told. The Council said it would backdate its assessment to the relevant date. This would result in a backdated bill for Miss X’s care and support.
23. Mrs Z told the Council she wanted to challenge the result of its assessment and made a formal complaint. In her complaint, she said the Council had unfairly assessed Miss X. She said because Miss X lived at home with her family, she had costs that were not being considered, but which should be classed as DRE. She said Miss X could not afford the assessed weekly charge towards her care.
24. The Council agreed to a review and explained Mrs Z would be able to present further evidence for consideration. Mrs Z asked for time to provide evidence, which the Council agreed to.
25. Between 2019 and 2021, Mrs Z made the case for why the Council had wrongly assessed Miss X’s finances. This began with a review, conducted in 2019, and culminated in an appeal, considered by a panel in 2021. In October 2021, the Council wrote to Mrs Z to confirm the panel had found Miss X’s contributions were correct and affordable.
26. Mrs Z was unhappy with the result of her appeal and referred her complaint to the Ombudsman in November 2021.

Summary of Mrs Z’s case and the Council’s responses

27. During the review conducted in 2019, Mrs Z said:
• Miss X lived at home and was liable for council tax;
• Miss X paid to access different activities while attending the day centre;
• the household incurred extra laundry costs because of Miss X’s disability;
• the cost of utilities for the household was higher than average, because of Miss X’s disability;
• Miss X used the internet to help keep her socially engaged, but the household would not have the internet if Miss X did not live with them; and
• Miss X contributed towards the monthly mortgage payments.
28. Mrs Z said the Council had not considered some of these costs as DRE when they should have been. She also said the Council had not considered that Miss X contributed to housing costs, like the mortgage and council tax, when assessing her finances.
29. The Council considered the information provided. In its response, it said:
• expenses at the day centre were for the cost of the activities. In previous correspondence, the Council said the costs for activities in the day centre were the same for any member of the population.
• the fuel costs incurred by the household were less than the normal costs for a similar property with the number of occupying adults, in line with the national costings for dual fuel.
• Miss X was awarded a weekly payment of £61.20 PIP enhanced mobility component, but had a mobility car rather than receiving the payment. The Council had calculated the travel costs between Miss X’s home and the day centre amounted to less than the weekly rate of £61.20, so there were no extra costs to consider.
• the internet was an ordinary household expense covered by the MIG, unless there were extra costs arising from Miss X’s disability. This might include specialist equipment or software. Miss X did not need any such specialist equipment.
• there were no discounts for council tax as there were three other adults living in the property.
30. Mrs Z appealed against this decision, putting forward her case in writing and later in a panel hearing. Mrs Z reiterated the points she had already made, but also said:
• the cost of three return trips to the day centre via taxi would be a minimum of £36 per day.
• Miss X needed nighttime supervision, detailed in her care and support plan, but the Council was not providing this.
• the assessed charge did not leave Miss X with any extra money for ad-hoc care needs, or allow independence.
31. An appeal panel hearing took place in September 2021. The Council considered the information submitted by Mrs Z and Miss X, as well as relevant correspondence, financial assessments, and care and support assessments from late 2018 to 2020.
32. Information provided to me by the Council shows it considered the following:
• Paragraph 8.16 of the Guidance says that where a local authority has decided to charge, it must carry out a financial assessment of what the person can afford to pay. Paragraph 8.21 says the person’s income must be taken into account.
• The Council considered Miss X was not liable for council tax in her parents’ home, as outlined in the council tax hierarchy of liability.
• The Council decided that Miss X had no legal liability for housing costs, which are defined in the Regulations as “mortgage payments, payments by way of rent or ground rent, council tax, or service charges.” It said contributions to household expenses were covered by the MIG, referring to a previous Ombudsman decision.
• Regarding Miss X’s overnight needs, the Council said the Daily Living Component of PIP had different conditions to the previous Disability Living Allowance (DLA). PIP did not have conditions of entitlement relating to day and night. It said Miss X’s most recent Care and Support Assessment had not identified support needs or DRE related to nighttime.
• Concerning transport costs, the Council held that DRE allowances are not usually given for transport costs if an individual is in receipt of the mobility component of PIP. It assessed Miss X’s travel costs were less than the enhanced rate of PIP mobility component she received.
33. The Council explained this reasoning in its decision letter, sent to Mrs Z in October 2021. It added that it had identified no extra costs in relation to Miss X’s mobile phone use.
34. The panel had considered whether the Council was at fault for the time taken to hold the appeal, but decided it was not.
35. The Council also provided information on accessing a carer’s assessment for Mrs Z and checking whether she could access a carer’s personal budget. The Council would also review Miss X’s care and support needs again to make sure they were recorded accurately.

The Council’s response to our enquiries

36. Mrs Z told us the Council had not considered some other costs incurred by Miss X as DRE. In my enquiries to the Council, I asked whether it had assessed these previously and, if not, would it be prepared to assess them.
37. The Council said:
• it had assessed mobile phone charges previously and had not identified any extra costs linked to Miss X’s disability, as set out in the panel’s decision.
• there had been no mention of increased energy and water costs, specialist clothing, cosmetics, or a replacement bed in the appeal and financial self-assessment forms completed in November 2018. The questions relating to these matters had been crossed out on the self-assessment forms.
• it had concluded there were no additional costs in excess of Miss X’s enhanced rate Mobility Component of PIP.
• regarding costs incurred by Miss X when her family was away, the Council had since reviewed Miss X’s Care and Support Assessment to make sure her personal budget met her eligible needs.
• a financial assessment, including consideration of DRE, could be requested at any time.

Analysis

38. The Ombudsman is not an appeals body. This means we cannot overrule the Council, or decide whether certain financial costs should be considered DRE. Unless there is evidence of procedural fault, we cannot question the merits of the Council’s decision.
39. I am satisfied the Council considered the information provided by Mrs Z in line with its own Policy and with the Guidance. It has followed its processes in allowing Mrs Z a review of the assessment and an appeal of the decision. It allowed enough time for Mrs Z to provide evidence to support her case and provided proper explanations for its decision-making.
40. Councils have some discretion to consider the individual circumstances of each case when deciding what costs should be disregarded. Where Mrs Z has challenged the Council’s definition of housing costs in this case, there is evidence the Council has turned its mind to this question. It sought relevant information from external sources and reached a conclusion permitted within the Regulations and the Guidance. I appreciate Mrs Z does not agree with the Council’s conclusions; however, I have not identified fault in the Council’s actions and cannot therefore question the merits of the Council’s decision.
41. The Council has confirmed to me that service users can ask for a review of their financial assessments at any time. Some of the financial information considered by the Council in this case dates from 2019 and Miss X’s expenditure may well have changed in the time since the appeal. Mrs Z also highlighted some expenses with the Ombudsman that the Council has not yet been asked to consider. If there have been any recent significant changes, Mrs Z may wish to ask the Council to carry out a new financial assessment for Miss X.
42. The Council has also suggested Mrs Z may benefit from a carer’s assessment, which will help determine an entitlement to a carer’s personal budget. The Council says Mrs Z has so far declined the offer of this assessment, although it remains an option should she wish to request it.
43. There was a long time between the request for an appeal in late 2019 and the appeal being heard in late 2021. The appeal panel concluded the Council was not responsible for the delay for the following reasons:
• The Council carried out a review of Miss X’s care and support needs in March 2020, but, shortly after, the Government’s Covid-19 physical distancing restrictions came into effect.
• The Council offered to hold a remote appeal panel hearing, but Mrs Z asked for an in-person meeting when circumstances allowed. A physically-distanced meeting was scheduled for October 2020, but Mrs Z and Miss X were unable to attend due to ill-health.
• A rescheduled meeting was arranged for July 2021, but Mrs Z and Miss X could not attend as they were able to make last-minute holiday plans.
• A hearing was held in September 2021.
44. Given the Council’s early offer to conduct a remote appeal hearing, I have not identified any fault in the Council’s actions leading to the delay. I have also seen no evidence to suggest Mrs Z or Miss X raised concerns about the delay itself.

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Final decision

45. I have completed my investigation with a finding of no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman