Summary: Mrs X complained about delays with the Council in completing a DRE assessment and reviewing her appeal of the DRE assessment. Mrs X also complained the Council has failed to fully acknowledge the expenses she incurs because of her disability. We found fault with the Council for the delays and the avoidable distress, frustration and inconvenience this caused Mrs X. We also found fault with the Council failing to fully assess all Mrs X’s requested DREs. The Council agreed to ensure it has backdates Mrs X’s approved DREs correctly, complete a review of an outstanding DRE and pay Mrs X £300 for the avoidable distress, inconvenience and frustration caused.

The complaint

1. Mrs X complained the Council failed to complete a DRE assessment on her request following her financial assessment in January 2020 until August 2021.
2. Mrs X also complained the Council delayed in completing her DRE appeal review until January 2022.
3. Mrs X says the Council continues to fail to fully acknowledge the expenses she incurs because of her disability.

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The Ombudsman’s role and powers

4. 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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

7. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
8. Mrs X and the Council provided comments on my draft decision which I considered before making my final decision.

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What I found

Relevant law and guidance

9. The Care Act 2014 (‘the Act’) introduced a requirement that local authorities should promote ‘wellbeing’ and signifies a shift from existing duties on local authorities to provide particular services, to the concept of ‘meeting needs’. The concept of meeting needs recognises that everyone’s needs are different and personal to them. Local authorities must consider how to meet each person’s specific needs rather than simply considering what service they will fit into. (Care and Support Statutory Guidance, Chapter 1), (‘The Guidance’)
10. If a council decides a person is eligible for care, it must prepare a care and support plan. This must set out the needs identified in the assessment. It must set out a personal budget which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, section 26)
11. The Guidance sets out what should be considered a Disability Related Expense (DRE). The list includes:
• the costs of any privately arranged care services required, including respite care;
• day or night care which is not being arranged by the local authority;
• personal assistance costs, including any household or other necessary costs arising for the person; and
• other transport costs necessitated by illness or disability. (The Guidance, paragraph 40)
12. The Guidance also says the following:
• The above list “… is not intended to be exhaustive and any reasonable additional costs directly related to a person’s disability should be included.” (The Guidance, paragraph 40)
• That a person’s care plan “… may be a good starting point for considering what is necessary disability-related expense. However, flexibility is needed. What is disability-related expenditure should not be limited to what is necessary for care and support.” (The Guidance, paragraph 41)

Council’s policy on charging for care and support

13. The Council calculates a person’s contribution towards their care charges by completing a financial assessment.
14. The Council’s policy says it will reassess a person’s contribution every year in April to take account of any changes in income, benefits, private pensions and the cost of living. The Council says it can complete extra reviews as appropriate, such as on request.

Council’s disability-related expenditure policy and guidance for charging for care and support

15. The Council says it applies a standard allowance for DREs based on the rate of disability benefit a person receives. If a person is in the higher or enhanced rates the Council will apply an allowance of £26.50 per week as standard.
16. The Council’s policy says a person can request a full DRE assessment (a review) if they consider their weekly disability related expenses exceed £26.50 per week.
17. If a person requests a review of their DRE entitlement, they will need to provide evidence to the Council to support a specific DRE cost. The Council’s guidance says it should complete a review of a person’s DREs within 10 working days of receiving the request for a review, inclusive of the evidence, from a person.
18. The Council’s policy says it will consider if an expense is required to meet a person’s specific need. The Council will assess this through consideration of the care and support plan and, if needed, liaising with a care manager, support worker or care provider.
19. If, following the assessment, the Council does not consider a person’s expenses exceeds £26.50 per week it will keep the baseline figure.
20. The Council says it will backdate the outcome of an assessment, when it has delayed, to the date a person requested the DRE assessment. However, if a person has delayed in providing information it may consider a later start date.
21. The Council’s policy and guidance says a person can appeal any DRE decision through its financial assessment appeals process.

Council’s operational instructions for reviews, appeals and complaints

22. The Council provides details of how it completes reviews under its financial assessment appeals process within its operational instructions policy.
23. The Council runs a three-stage appeal process. Stage one is completed by an assessor or officer, Stage 2 by a Team Manager and at Stage 3 the Council directs a person to the Local Government and Social Care Ombudsman (the Ombudsman).
24. The Council’s operational instructions provides no timescales for completion of appeals but says this should fall in line with how it handles complaints. The Council’s corporate and adults social care complaints policies says it will respond to complaints within 20 working days of receipt.

What happened February 2020 to January 2021

25. In February 2020, the Council completed a financial assessment of Mrs X and said she needed to contribute £79.68 towards her care costs. The Council included a DRE allowance £26.50, for higher band for disability benefits within this assessment.
26. Mr X asked for a DRE assessment on 27 February 2020. The Council sent Mrs X’s the relevant forms for a DRE assessment.
27. The Council completed an annual review of Mrs X’s financial assessment in March 2020 and increased her contribution to £90.06. The Council preserved the standard DRE allowance.
28. Mrs X returned the relevant forms and provided evidence of her expenses to the Council on 22 May 2020. Mrs X sought DREs for her Gardner, Landline Rental, Petrol, Bedding, Eating Out, Laundry, Train Tickets, Hairdresser, Non-prescription Medication and Window Cleaner.
29. The Council asked for additional information from Mrs X on 11 June 2020 and 29 June 2020. On 2 July 2020, Mrs X said she could not provide any further information. The Council said it would complete the DRE assessment on the information it had.
30. The Council failed to complete a DRE assessment of Mrs X.

Analysis

31. The Council followed its policy by completing a financial assessment of Mrs X and applying the higher band of its DRE allowance in February 2020.
32. The Council also followed its policy by providing Mrs X with details about how to request an assessment for DREs. The Council handled Mrs X’s early contacts around the DRE assessment suitably and I do not find fault.
33. The Council asked for further information 15 working days after receiving Mrs X’s evidence bundle on 22 May 2020. While this is 5 working days outside its policy timescales, any impact caused by this delay was nominal.
34. However, the Council failed to complete the assessment as promised after 2 July 2020. This was fault. This fault caused a delay from 2 July 2020 until 4 January 2021 in completing a DRE assessment. This is a delay of six months.

What happened January 2021 to April 2021

35. On 4 January 2021, the Council wrote to Mrs X to advise it had changed her contribution from 3 February 2020 to £79.68 and then £84.31 from April 2020. The Council said it had backdated the charges to reflect this.
36. Mrs X told the Council she could not afford the client contribution and queried her DREs. The Council discussed with Mrs X the option of a Debt Relief Order.
37. On 18 February 2020, Mrs X applied for a Debt Relief Order. This was granted on 18 April 2021 for Mrs X’s debt before 18 January 2021. The Debt Relief Order cancelled Mrs X’s debts, of which Mrs X owed 26% to the Council.

Analysis

38. The Council entered discussions with Mrs X about her contributions towards her care. The Council also spoke with a representative organisation acting on Mrs X’s behalf about the Debt Relief Order. There was no ongoing communication about review of Mrs X’s DREs in response to the Council’s reassessment of 4 January 2021. Instead ,Mrs X choice to proceed with the Debt Relief Order.
39. The Council was not at fault for not completing a review during this time.
40. Mrs X chose to continue with a Debt Relief Order. The Debt Relief Order had two results; it removed Mrs X debts, including any care contributions she owed to the Council before 18 January 2021, and negatively impacted her credit file.
41. While Mrs X owed 26% of the debt to the Council, she owed most of the debt to other parties. I cannot find the Council responsible for the negative impact on her credit file as Mrs X would have experienced the same result regardless of the debt owed to the Council.
42. I do not find fault with the Council for its actions from January 2021 to April 2021.

What happened April 2021 to August 2022

43. On 6 April 2021, the Council completed an annual financial assessment for Mrs X saying her care contributions were now £85.41. The Council include the standard rate or DRE in Mrs X’s assessment.
44. Mrs X appealed the financial assessment and provided the Council with the completed forms and supporting evidence by 27 May 2021.
45. On 16 August 2021, the Council completed its DRE assessment. The Council said:
• It accepted Mrs X’s DRE for her Gardner. But because this was the only DRE it accepted, and it was less than the £26.50 standard DRE, this did not change her contribution.
• It rejected Mrs X’s other DREs.
46. On 9 September 2021, Mrs X appealed the Council DRE assessment.
47. The Council asked for extra information on 29 October 2021 which Mrs X provided on 5 November 2021. The Council provided its Stage 1 appeal response on 14 January 2022. The Council said:
• It accepted Mrs X’s DRE for her Gardner, Petrol, Partial Laundry and Train Tickets.
• It rejected Mrs X’s requests for Landline Rental, Bedding, Eating Out and her Window Cleaner.
• It needed more information about Mrs X’s Hairdresser and Non-prescription Medication.
• Because of the additional DREs it had reduced her care contributions to £52.94 and backdated this to 18 January 2021. This increased to £54.44 from 12 April 2021.
• It apologised for the delays and offered Mrs X £100 for the delays up to this point.
48. Mrs X disputed the result of the DRE appeal on 4 February 2022 as the Council had rejected some of her DRE requests. On 9 March 2022, The Council agreed to allow her Window Cleaner and Eating Out temporarily before deciding fully on these as part of the annual review in April 2022.
49. In April 2022, the Council completed Mrs X’s annual review. The Council said:
• It accepted Mrs X’s DRE for her Gardner, Petrol, Partial Laundry, Train Tickets and Window Cleaner.
• It rejected Mrs X’s requests for Landline Rental, Bedding and Eating Out.
• It needed more information about Mrs X’s Non-prescription Medication.
50. Mrs X sought a review the Council’s financial assessment and provided the Council with evidence of the Non-prescription Medication by 1 July 2022.
51. On 26 August 2022, the Council completed a review of Mrs X’s DREs. The Council said:
• It accepted Mrs X’s DRE for her Gardner, Petrol, Partial Laundry, Train Tickets, Window Cleaner and her Non-prescription medication.
• It rejected Mrs X’s requests for Landline Rental, Bedding and Eating Out.

Analysis

Assessment inconsistencies

52. When considering if a cost is a DRE, the Council must consider any reasonable additional costs directly related to a person’s disability. The Council should consider each request and apply consistent rationale based on the individual merits of each cost.
53. The Ombudsman is not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process.
54. The Ombudsman must decide if the Council has considered the relevant legislation and policies in making its decision. If the Council has considered the relevant policies and reached a suitable decision in line with these policies, the Ombudsman cannot find fault.
55. The Council has consistently allowed Mrs X’s Gardner as a DRE. The Council has been consistent in this and I do not find fault.
56. The Council has also consistently rejected Mrs X’s request for her Bedding, Eating Out and Landline Rental. On each assessment, or appeal, made by Mrs X the Council has consistently applied the same logic to rejecting these DREs. The Council has followed its policy and the guidance and I do not find fault.
57. However, the Council has been inconsistent with its consideration of Mrs X’s other DREs. An inconsistency in decision making by the Council is demonstrative of potential fault. There would not be fault by a Council if new evidence is provided to demonstrate a change in views. But, if a different decision is made based on the same, or similar evidence, previously provided, then this is demonstrative of fault.
58. While inconsistency of decision making is demonstrative of fault, I do not find fault with the Council’s decision making about Petrol or Train Tickets. When the Council completed its assessment in August 2021 it believed Mrs X’s Disability Living Allowance should cover both these costs already. It was only when Mrs X appealed the assessment and told the Council her Disability Living Allowance only covers her mobility vehicle the Council had enough information to grant a DRE for these costs. This inconsistency in decision making is not fault but reflective of the information provided.
59. However, I have found fault with the Council’s inconsistencies about Mrs X’s request for DREs for Laundry, Window Cleaner and Hairdresser. In August 2021, the Council rejected all these requests. On appeal in January 2022, the Council changed its mind about her Laundry. The Council then changed its mind about Mrs X’s Window Cleaner as a DRE. The Council has changed its mind despite the absence of additional information or a change in circumstances. This inconsistency by the Council is fault.
60. It is of note the Council advised Mrs X’s it would consider her request for her Non-prescription medication and Hairdresser as a DRE in January 2022 but needed further information.
61. The Council awarded the Non-prescription medication in August 2022 following Mrs X providing the requested information. The Council acted correctly here, and this is not the fault by the Council from January 2022 to August 2022.
62. But, the Council has failed to consider Mrs X’s request for her Hairdresser as a DRE in either the April 2022 assessment or August 2022 review. While Mrs X may still need to provide extra information to the Council about how the treatments relates to her care needs, failure to even consider this request for a DRE is fault.

Backdating DREs

63. The Council has shown that it has backdated some DREs to 18 January 2021. However, it is unclear if all the relevant, approved, DREs have been backdated to the correct time periods.
64. The Council says it will backdate the outcome of an assessment, when it has delayed, to the date a person requested the DRE assessment.
65. The Council was at fault, through delays or inconsistent decision making, for Mrs X’s DREs about Laundry and Window Cleaner. In January 2022, the Council also agreed to backdate DREs for Petrol and Train Tickets.
66. The Council should ensure it has backdated Mrs X’s DREs for her Laundry (Partial), Window Cleaner, Gardner, Petrol and Train Tickets to 18 January 2021.
67. If a person has delayed in providing information, the Council may consider a later start date for the DRE.
68. For Mrs X, she provided information later for her Non-prescription medication DRE on 1 July 2022. The Council agreed to backdate this to 4 July 2022 and it should ensure it has completed this.

Delays

69. The Council’s policy says it should complete a DRE assessment within 10 working days.
70. Mrs X provided the Council with the full information on 27 May 2021 but the Council only completed the assessment on 16 August 2021. It took the Council 56 working days to complete the assessment. This is a delay of 46 working days, roughly two months, outside the Council’s policy timescales.
71. In 2022, Mrs X provided the Council with the full information by 1 July 2022. The Council only completed the assessment on 16 August 2022. It took the Council 32 working days to complete the assessment. This is a delay of 22 working days, roughly one month, outside the Council’s policy timescales.
72. In total, the Council has delayed for nine months outside its DRE assessment timescales, across 2020, 2021 and 2022 in completing its DRE assessments for Mrs X. This was fault. This fault caused Mrs X avoidable distress, inconvenience and frustration.
73. The Council’s policy about appeals does not provide a specific timescale but references the Council should complete these in line with its complaints policy. The complaints policies allow 20 working days per stage.
74. Mrs X requested an appeal at Stage 1 on 9 September 2021. The Council had 20 working days to complete the appeal meaning it should have provided a response by 7 October 2021. The Council failed to provide a response until 14 January 2022. Once bank holidays, and the time period from 29 October 2021 to 5 November 2021 is taken out, this is a delay of 63 working days, about three months, outside the Council’s timescales. This delay is fault.

Service improvements

75. The Council has accepted fault for the way in which it handled Mrs X’s assessments and appeals. In response to Mrs X’s complaint the Council has already made changes to the way in which it prioritises DRE assessments, including added management oversight in the process.
76. The Council is also completing a review of its financial assessments to improve timeliness and responsiveness in completing assessments. The Council advised once it completes this review it will implement this within its service.
77. I consider the Council has already started the process of completing suitable service improvements.

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Agreed action

78. Within one month of the Ombudsman’s final decision the Council should:
• Ensure it has backdated Mrs X’s DREs for her Laundry (Partial), Window Cleaner, Gardner, Petrol and Train Tickets to 18 January 2021.
• Ensure it has backdated Mrs X’s DRE for Non-prescription medication to 4 July 2022.
• Write to Mrs X confirming what information, or evidence, it needs from her to consider her DRE for her Hairdresser. The Council should confirm it will complete a review of this DRE request within 10 working days of receipt of the evidence from Mrs X.
• Provide Mrs X with a payment of £300 to reflect the distress, inconvenience, frustration and financial trouble caused through the total of 12 months of delays, outside the Council’s complaint timescales, in handling her assessments and appeals. This payment is also in reflection of the inconsistencies of the Council’s decision making putting Mrs X to avoidable time and trouble in requesting repeat reviews and appeals over the same DRE requests.
79. Within three months of the Ombudsman’s final decision the Council should:
• Complete its review into its financial assessment processes and provide evidence of the implementation of the outcome of this review within its service to the Ombudsman.
80. The Council should provide us with evidence it has complied with the above actions.

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Final decision

81. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman