Summary: The Council applied relevant guidance and its charging policy in Ms Y’s financial assessment. There is no fault in the way the Council considered Ms Y’s expenses when it calculated her care charge.

The complaint

1. Ms X complained the charge for her daughter’s (Ms Y’s) care was unaffordable. She said this caused Ms Y financial hardship and means she may have to cancel her care.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. Ms X complained to us in April 2022. So any matters before April 2021 are late complaints. Her complaint to us mentioned correspondence and events in 2020. Ms X has given no reason why she could not complain to us within 12 months of those events. I have referred to events before April 2021 as background only.
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
5. 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

6. I considered Ms X’s complaint, the Council’s response and documents described later in this statement. I discussed the complaint with Ms X.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law, guidance and policy

8. Councils can charge for home care. To work out the charge, they carry out a financial assessment which considers a person’s income and capital. Government Guidance (Care and Support Statutory Guidance ‘CSSG’) says councils must leave the person with enough money to cover their living expenses. This is known as the Minimum Income Guarantee (MIG.)
9. Disability Related Expenditure (DRE) is a discretionary allowance in a financial assessment for people who receive disability benefits. DRE offsets disability costs against their income. It means people can keep more of their income as councils don’t take DRE into account in the financial assessment. Paragraphs 39 to 41 of Annex C of CSSG says where disability-related benefits are taken into account, the local authority should make an assessment and 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. CSSG allows a council to refuse DRE for transport where a person has a mobility benefit which is available for and can cover the person’s travel expenses. CSSG goes on to say

“In other cases, it may be reasonable for a council not to allow for items where a reasonable alternative is available at lesser cost. For example, a council might adopt a policy not to allow for the private purchase cost of continence pads, where these are available from the NHS”

10. The Council has a standard allowance for DRE in three bands depending on the level of disability benefit they get. If the person wants an individual assessment of their DRE, they can ask for one.
11. The Council’s contributions policy sets out its approach to charging. I have summarised relevant paragraphs below:
• Paragraph 3.22 says the Council makes an allowance for housing costs like rent and council tax net of any benefits received to support these costs.
• Paragraphs 5.5 and 5.6 say if a person with disabilities has been assessed as needing to take part in social activities, the Council must consider travel (how the person will get to the activity). This does not change because a person is receiving a specific benefit since the person may be using this for another relevant costs.
• Paragraph 5.11 says where a person employs a personal assistant, it is their responsibility to meet the costs incurred. The Council will not generally consider as DRE the PA’s travel, meal or other costs over and above their pay. Or the admission costs for trips/excursions. Funding is for support to access the community and not for the trip itself
12. The Council told me it dealt with housing costs in a financial assessment on a case-by-case basis. It went on to explain that cases not covered by general guidance and its policy were considered by the finance panel. Members of the panel in Ms X’s case decided to apply the eligibility rules for housing benefit to ensure fairness.
13. Housing benefit is not payable where a person lives with a close relative or another relative on an informal arrangement that is not a commercial one. There are no rigid rules about what counts as a commercial arrangement.

What happened

Background

14. Ms Y is a young adult with a learning disability. Ms X looks after Ms Y’s finances for her. Ms X and Ms Y live with another relative and they pay this relative rent. The Council gives Ms Y a payment for her care and support which Ms X manages on her behalf. The payment covers the wages of personal assistants who support Ms Y to access voluntary work and to socialise at weekends.
15. Before November 2019, Ms Y did not pay anything towards her care. The Council changed its charging policy in 2019. This change meant some people who had been getting their care for free would have to pay a charge. In November 2019, the Council wrote to Ms Y setting out her maximum weekly charge. This charge was capped to £40 (‘mitigated’) temporarily to reduce the impact. The letter explained the charge would increase in November 2020. The 2019 financial assessment included the highest band of DRE and left Ms Y with the correct MIG.

Key facts

16. In November 2021, Ms X completed paperwork the finance team had sent her to review Ms Y’s financial assessment. She said in a cover letter that Ms Y could not afford an increase. In December, the Council reviewed the financial assessment for Ms Y. The outcome was her weekly charge would be £63. The finance team wrote to them saying it would not allow the following items Ms Y had requested as DRE:
• rent, food, toiletries, hairdressing or club fees as these were daily expenses.
• fuel or taxi costs because Ms Y could use her disability benefit for those things.
• private dental costs because an NHS service was available.
• personal assistant expenses because they were not in Ms Y’s care and support plan.
17. Ms X was unhappy with the charge and complained.
18. The Council’s response in February 2022 said:
• The financial assessment was in line with the law and guidance which set the minimum amount a person should be left with to live on. The MIG for Ms Y was £132.
• It considered her request for Ms Y’s rent to be a property related expense. Its policy was to look at housing benefit rules which say if a landlord is a close relative living in the same household, one cannot claim benefit. As the rent is paid to her, the Council would not include it as a property related expense.
• Food, toiletries and general expenses, hairdressing and club fees are general living costs and not DRE
• Fuel and taxi costs are expected to be covered by Ms Y’s mobility payment which was disregarded in the financial assessment
• Ms Y is entitled to free dental treatment and so the £20 private dentist cannot be included as a disregarded expense
• Carers’ passes need to be used for their activity costs.
19. Ms X told the finance team that the complaint response was inaccurate. She said Ms Y paid rent to her (Ms X) because Ms Y could not manage her own finances. Ms X explained she then transferred Ms Y’s payment to another relative with whom they both lived (and who was the landlord). Ms X asked the Council to look at the financial assessment and complaint response again.
20. The finance manager asked Ms X for more information to consider whether the agreement between the parties about rent was a commercial one. Ms X said she would pay Ms Y’s rent if Ms Y stopped paying it, and the space would not be rented out to anyone else if Ms Y did not live there. She went on to say the payment covered all household bills. The finance manager emailed Ms X saying the rental payments would not be considered as a business agreement for a housing benefit claim and so the Council could not allow the rent as an expense in Ms Y’s financial assessment.
21. Ms X was still unhappy and so complained to us.

Findings

22. The Council is not at fault. I set out my reasons below:
• I am satisfied the Council considered Ms X’s request for an allowance for rent. This is an area of discretion for local authorities and it is not for us to criticise discretionary decisions taken without fault. The Council explained it considers requests individually and for fairness looks at whether or not a person would be eligible under housing benefit rules. I have no grounds to criticise the Council’s approach. There is no fault in the decision that Ms Y’s rental arrangement was not a commercial one on the basis of information from Ms X which suggested the arrangement was an informal one. Consequently, Ms Y was not eligible for a housing allowance in the financial assessment because she would not have been entitled to claim housing benefit.
• The Council was also entitled to conclude Ms Y’s mobility benefit was available for her taxi and other transport costs. This was in line with paragraphs 39 to 41 of Annex C of CSSG. So there was no fault in the decision to refuse additional DRE for transport.
• The Council’s decision about the personal assistant’s costs was also appropriate and in line with paragraph 5.11 of its policy which says such costs are to be covered by the person or covered by carers’ passes.
• Annex C of CSSG says it is reasonable for a council to refuse private health costs where there is a free NHS service available. The Council has applied this principle to the cost of Ms Y’s dental treatment.
• Other costs Ms X wishes to claim are general living costs not connected to a disability, like hairdressing and club fees. So it was appropriate for the Council to refuse them because they did not meet the definition of DRE.

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Final decision

23. The Council applied relevant guidance and its charging policy in Ms Y’s financial assessment. There is no fault in the way the Council considered Ms Y’s expenses when it calculated her care charge.
24. I completed the investigation.

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Investigator's decision on behalf of the Ombudsman