Bath and North East Somerset Council (22 009 364)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 22 Mar 2023

The Ombudsman's final decision:

Summary: Mrs C says the Council failed to properly consider her disability related expenditure and failed to allow a disability addition to her minimum income guarantee. The Council failed to consider some items put forward by Mrs C as disability related expenditure properly. There is no fault in how the Council considered the minimum income guarantee. An apology, payment to Mrs C, consideration of various items to decide whether they are disability related expenditure and training for officers is satisfactory remedy.

The complaint

  1. The complainant, whom I shall refer to as Mrs C, complained the Council:
    • failed to properly consider her disability related expenditure when calculating her contribution towards care costs; and
    • failed to allow an additional £41.55 disability addition to her minimum income guarantee.
  2. Mrs C says fault by the Council has led to her being short of money to fund all her living costs.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  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

  1. As part of the investigation, I have:
    • considered the complaint and Mrs C's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided.
  2. Mrs C and the organisation 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

What should have happened

  1. The Care and Support Statutory Guidance (Government guidance) says local authorities have a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs. In all cases, a local authority has the discretion to choose whether or not to charge under section 14 of the Care Act following a person’s needs assessment.
  2. Government guidance refers to eligibility in care assessments and provides examples of how local authorities should consider each outcome. For maintaining a habitable home environment it says local authorities should consider whether the condition of the adult’s home is sufficiently clean and maintained to be safe.
  3. People receiving local authority-arranged care and support other than in a care home need to retain a certain level of income to cover their living costs. Under the Care Act 2014, charges must not reduce people’s income below a certain amount, but local authorities can allow people to keep more of their income if they wish. This is a weekly amount and is known as the minimum income guarantee (MIG). For 2022 to 2023 the MIG for an adult of pension credit age is £194.70 per week.
  4. Councils can take disability-related benefit into account when calculating how much someone should pay towards the cost of their care. When doing so, a council should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs it is not meeting. Government guidance provides a list of examples of such expenditure. It 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. It is up to a Council to decide whether an item is directly related to a person's disability and whether the cost claimed is reasonable.
  5. Some of the examples of DRE included in Government guidance are:
    • any heating costs, or metered costs of water, above the average levels for the area and housing type;
    • costs occasioned by age, medical condition or disability;
    • reasonable costs of basic garden maintenance, cleaning, or domestic help, if necessitated by the individual's disability and not met by social services;
    • personal assistance costs, including any household or other necessary costs arising for the person;
    • other transport costs necessitated by illness or disability, including costs of transport to day centres, over and above the mobility component of DLA or PIP, if in payment and available for these costs. In some cases, it may be reasonable for a Council not to take account of claimed transport costs - if, for example, a suitable, cheaper form of transport, for example, Council-provided transport to day centres is available, but has not been used.
  6. The Council’s care and support policy (the Council’s policy) sets out the standard or maximum allowances the Council uses for disability related expenses, if that extra cost is incurred and is needed to meet a need due to a medical condition or disability, as identified in the care and support assessment.
  7. The Council’s policy gives examples of expenses which include:
    • allowances for the maintenance of special equipment needed due to a disability or condition;
    • private domestic help where the care assessment confirms this is necessary due to disability or medical condition and is not provided through Council-arranged support. This may include cleaning and shopping. The actual cost is paid up to £14.00 per week for a single person household;
    • essential equipment maintenance/repair (if not maintained by adult care) (such as stair lift maintenance). The actual cost of maintaining the specialist equipment is at the discretion of the Council and after confirmation by Occupational Health;
    • additional heating allowance which is actual gas and electricity paid over one year minus the average amount annually.

What happened

  1. Following a fall at home Mrs C was admitted to a nursing home and was assessed as requiring a package of care for her to return home. The Council carried out an assessment in July 2022 which identified eligible needs in each of the assessed areas. The Council agreed a budget of £499.52 per week and carried out a financial assessment. In that financial assessment Mrs C asked the Council to take into account various items of DRE. The only DRE the Council allowed was for the costs of the telecare alarm and the standing charges for gas and electricity. The Council assessed Mrs C as being able to pay £282.20 weekly towards her care costs.
  2. Following a complaint by Mrs C’s representative and a complaint to the Ombudsman the Council carried out a further assessment in December 2022. As a result of that assessment the Council is to include in Mrs C’s DRE some costs for cleaning of her property although it is not at the moment clear how much the Council intends to allow. The Council says it has not allowed the remainder of Mrs C’s claimed disability related expenditure as the Council considers the costs to be general living costs and not related to Mrs C’s disability.

Analysis

  1. Mrs C says the Council failed to properly consider her DRE when calculating her contribution towards care costs. As I said in paragraph 4, 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 the disputed elements in Mrs C’s DRE. 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.
  2. I set out in paragraphs 10 and 11 Government guidance on how DRE should be considered. That makes clear when carrying out a financial assessment councils should ensure the assessment allows the person to keep enough income to pay for necessary disability related expenditure. As a result, councils are expected to consider any reasonable additional costs which are directly related to a person’s disability, Government guidance makes clear this should not be restricted to just what is necessary for care and support.
  3. In this case I am satisfied the Council has considered some of the DRE Mrs C has referred to properly. That relates to Mrs C’s request for consideration of costs for internet access, home serve, home alarm, TV licence, domestic and general cover and mobile telephone costs. For each of those costs the Council has declined to include them in Mrs C’s DRE as it considers those costs are no different to the costs a person without a disability would be expected to pay. As DRE means additional costs a disabled person faces as a result of their disability rather than the same every day costs a non-disabled person would pay I cannot criticise the Council for deciding those specific costs should not be included in Mrs C’s DRE.
  4. For the cost of transport to Mrs C’s GP and hospital I have seen nothing in the documentary records to suggest Mrs C has given the Council any information about the cost of travelling to GP and hospital appointments to enable it to consider whether this is DRE and should be allowed. In the absence of any such evidence for the Council to consider I cannot criticise it for not allowing an amount for transport to Mrs C’s GP and hospital.
  5. However, I have some concerns with how the Council considered the remaining costs identified by Mrs C. That includes costs for a cleaner, gardener, window cleaning, gas and electricity, and stair lift rental. For the cost of a cleaner in particular, I am concerned the Council did not consider whether it should include that cost as DRE given the care and support assessment made clear Mrs C needed help to maintain her home. I welcome though the Council’s decision to carry out a further assessment and note the assessment in December 2022 agreed costs of cleaning Mrs C’s property should be included in her DRE. I am concerned though the Council did not consider backdating inclusion of that cost as DRE to the date Mrs C began being charged for her care. As the July 2022 assessment also identified the need for Mrs C to have help cleaning her property I would have expected the Council to award that amount back to the point at which charging began. Failure to do that is fault. I therefore recommended the Council backdate the inclusion of cleaning as DRE to when it began charging Mrs B for her care. The Council has agreed to that.
  6. The Council refers to the fact its policy provides for a maximum of £14 per week for cleaning costs. However, it is not clear from the policy how the Council has reached the view this is an appropriate figure. Nor did the Council provide any evidence to show Mrs C can obtain cleaning of her property for that amount. I would expect the Council to have assessed the number of hours per week Mrs C requires to help her maintain the cleanliness of her home and to then identify whether that level of support can be provided within the £14 quoted in the Council’s policy. I am satisfied following my enquiries the Council has now done that and has awarded an amount to reflect the cost Mrs C incurs for the cleaner rather than just applying the £14 per hour limit. I welcome that.
  7. While it has not affected the assessment in this case I am also concerned in responding to my enquiries the Council refers to not commissioning domestic support unless the person is assessed as living in hazardous conditions. I am unsure what guidance the Council is relying on here. Government guidance, which I refer to in paragraph 9 does not refer to a person having to live in hazardous conditions for an item to be included as an assessed need. Instead, it refers to the need for the home to be safe and have essential amenities. I would be concerned if the Council were applying a higher threshold for identifying eligible needs than is set out in Government guidance. I have not seen any evidence it has affected the assessment in Mrs C’s case. However, I recommend the Council revisit whether it should rely on reference to hazardous conditions when assessing a service user’s needs.
  8. I am concerned about the Council’s approach to whether the cost of gardening should be included in Mrs C’s DRE. In its response to my enquiry the Council says gardening does not fall within a safe and habitable home definition. However, Government guidance lists the reasonable costs of basic garden maintenance as a possible DRE. That is not to say it should be considered DRE in Mrs C’s case. However, when considering DRE I would expect the Council to consider in each case whether the cost being claimed is disability related. I consider the Council should have done that in this case in any event because the care and support assessment makes clear Mrs C is having difficulty carrying out some of the tasks she previously undertook and gardening is specifically referred to. I have seen no evidence to suggest the Council considered whether the cost of a gardener constituted DRE in Mrs C’s case. That is fault.
  9. I would also have expected the Council to consider whether window cleaning is DRE in Mrs C’s case given her difficulties with mobility. Again, it is not my role to say whether the cost should be included in Mrs C’s DRE. However, I need to be satisfied the Council has properly considered whether the cost should be included and in this case I have seen no such evidence. That is fault.
  10. For gas and electricity, I note the Council has awarded an amount to reflect the standing charge for each. However, both the Council’s policy and Government guidance makes clear consideration should be given to whether the person applying has gas and electricity charges which exceed the average amount annually and whether that is related to their disability. I would therefore have expected the Council to consider that. The Council says it has considered Mrs C’s gas and electricity bill and those show her use is not above average. I recommend the Council provide evidence to support its calculation when providing evidence of its compliance with the Ombudsman’s remedy.
  11. For the stair lift, I note the Council has made a referral to occupational therapy to consider whether a stair lift is required, although the Council appears to accept it is. The Council notes Mrs C can then apply for a disabled facilities grant should a stair lift be assessed as required. While I welcome that I am satisfied the Council knew Mrs C had a stair lift in place at the time of the care and support assessment in July 2022. The care and support assessment refers throughout to difficulties Mrs C experiences with mobility. In those circumstances and given the Council’s own policy makes clear maintenance and repair of equipment such as a stair lift can be included in DRE I would have expected the Council to consider whether an amount for either or both the rental and maintenance costs of the stair lift should be included in Mrs C’s DRE. I have seen no evidence the Council considered that. That is fault. The Council has now agreed to make an allowance for the maintenance and repair of the existing stair lift if Mrs C provides evidence of any costs and says it will allow the rent of the current stair lift as disability related expenditure until it makes a decision on the disabled facilities grant application. I welcome that.
  12. The final area of concern for Mrs C is that the Council has not included in its financial assessment an additional £41.55 to reflect the fact Mrs C is entitled to the disability addition. I do not have any evidence to show Mrs C is receiving a disability addition. In any event, I am satisfied the Council has allowed the amount set out in Government guidance for the minimum income guarantee. As there is no requirement for the Council to provide an additional allowance above that I cannot criticise it for failing to do so in this case.
  13. So, I have found fault by the Council in how it considered some of Mrs C’s DRE. For the costs of cleaning I am now satisfied the Council has properly considered the cost to be treated as DRE and has agreed to backdate that, in line with my recommendations. For the other elements I recommended the Council properly consider whether gardening, window cleaning, gas and electricity costs and stair lift rental/maintenance should be included in Mrs C’s DRE. Once the Council has obtained any documentary evidence necessary from Mrs C and has completed the assessment it should write to Mrs C to tell her whether it now intends to include any additional expenditure as DRE. If it does, those amounts should be included from the start date of the care provision in 2022. If it does not, or if any elements referred to in this paragraph are not included in DRE the Council should clearly explain why that cost has not been allowed. Alongside that I recommended the Council apologise to Mrs C and pay her £100 to reflect her time and trouble in pursuing the complaint. I further recommended the Council carry out a training session for social workers on how to assess DRE. The Council has agreed to those recommendations.

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Agreed action

  1. Within one month of my decision the Council should:
    • apologise to Mrs C;
    • pay Mrs C £100;
    • obtain any evidence it needs from Mrs C to support its assessment of her DRE, make a decision on whether to include those items in her DRE within a further month of that and backdate any additional allowances to the point at which the Council began charging Mrs C for her care;
    • provide evidence to the Ombudsman of the Council’s calculation of Mrs C’s gas and electricity usage to demonstrate its view her costs are not above average.
  2. Within two months of my decision the Council should carry out a training session for social workers in how to assess DRE.

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Final decision

  1. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman

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