Summary: Mrs X complained on behalf of her son, Mr Y. She complained the Council has not considered all Mr X’s disability related expenditure (DRE). Mrs X also complained about the lack of clear information available to her, poor communication and delays from the Council. She says this caused distress and anxiety and Mr Y has paid more for his care than he should have. There was fault in the way the Council considered disability related expenditure, did not provide clear information and there were delays in this case. Mrs X and Mr Y suffered from the uncertainty about the financial contributions to Mr Y’s care and Mrs X was put to time and trouble to complain. The Council should apologise to Mrs X and Mr Y, pay Mrs X £200 to acknowledge the time and trouble she has been put to, reassess Mr Y’s disability related expenditure and remind its staff to consider each case individually.

The complaint

1. Mrs X complained on behalf of her son, Mr Y. She complained the Council has not considered all Mr X’s disability related expenditure (DRE). Mrs X also complained about the lack of clear information available to her and poor communication and delays from the Council. She says this caused distress and anxiety and Mr Y has paid more for his care than he should have.

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What I have investigated

2. I have investigated Mrs X’s complaint about the Council’s actions in this case for the 12 months prior to this complaint. The final section of this statement contains my reasons for not investigating the rest of the complaint. I make reference to events prior to October 2021 for context in this case.

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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)
5. 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)

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How I considered this complaint

6. I read Mrs X’s complaint and spoke to her about it on the phone.
7. I considered information provided by Mrs X and the Council.
8. Mrs 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

Background information

9. 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 places other than care homes. A Council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
10. Where a Council has decided to charge for care, it must carry out 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.
11. People receiving care and support other than in a care home need to keep a certain level of income to cover their living costs. Councils’ financial assessments can take a person’s income and capital into consideration, but not the value of their home. 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)
12. 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. The Care and Support Statutory Guidance sets out 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.
13. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
14. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
15. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
16. There are two types of LPA.

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

17. An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.
18. The Council’s policy applies a standard £17 per week minimum DRE allowance to all financial assessments for people with disabilities.

What happened

19. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
20. Mr Y has significant disabilities and requires support at all times to ensure his needs are met. The Council completed mental capacity assessments and determined he did not have capacity to make decisions about his finances or his care and support. Mrs X has lasting power of attorney to make decisions in his best interests.
21. Mr Y moved to a supported living placement in July 2020. He moved in after leaving a 52 week per year residential education placement. He moved into his new home and was always supported by two staff.
22. The Council wrote to Mrs X in August 2020 and provided information about charging for non-residential care.
23. The Council wrote to Mrs X again at the end of August 2020 and informed her Mr Y would need to contribute £48 per week to his care. The Council had applied its standard £17 per week minimum DRE allowance. The Council has not evidenced Mrs X was involved in the assessment or given the opportunity to provide information about Mr Y’s DRE before this assessment.
24. Mrs X attended a meeting with the Council in October 2020. She explained she had received two invoices, but Mr Y did not have the finances to pay. She requested information about DRE and for the Council to explain the process. The Council agreed to provide Mrs X with information, and she agreed not to complain until the Council had completed the financial assessment including the DRE. Mrs X informed the Council Mr Y needed additional food to take his medication, additional cleaning costs and a larger vehicle using all his mobility benefit, so he had to fund fuel on his own.
25. The Council completed a financial reassessment and approved a 50% discount to Mr Y’s contribution in November 2020 for 12 months backdated to July 2020. The Council wrote to Mrs X in November 2020 to confirm the payments would be £24 per week until July 2021.
26. The Council wrote to Mrs X in October 2021 to inform her it was removing the 50% reduction, backdated to July 2021 and Mr Y’s new contribution would be £49 per week.
27. In November 2021, Mrs X requested the Council reinstate the 50% discount and provided information to inform the DRE assessment. The Council has not evidenced it responded to Mrs X.
28. Mrs X sent an updated DRE form to the Council at the end of March 2022. The Council approved the financial assessment at the start of April 2022 and confirmed Mr Y’s contribution would £46 per week. Mrs X requested the Council backdate its decision to July 2021 when the previous agreement ended.
29. The Council completed two financial assessments in April 2022 and another in May 2022. The first assessment said Mr Y’s contribution would be £46 per week from the start of April 2022. The second said the contribution would be £48 per week from the middle of April 2022 until March 2023. The last confirmed the Council would backdate its decision to charge a contribution of £46 per week to July 2021.
30. Mrs X provided information about the additional DRE Mr Y incurred due to his needs in May 2022.
31. The Council responded in July 2022 and directed Mrs X to social care. In August 2022 social care referred her to the finance department, which then signposted her back to social care.
32. Mrs X complained to the Council in September 2022. She complained about the delays throughout this case and being given standard responses rather than receiving responses to the specific issues she had raised. She also complained the Council was not taking Mr Y’s DRE into consideration and she was being provided with inconsistent information.
33. The Council responded to the complaint in October 2022. The Council agreed Mrs X had experienced delays and apologised for not providing clear information. It explained the DRE had been fully considered and quoted its policy.
34. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to take additional DRE information into consideration and improve communication.
35. In response to my enquiries the Council stated it had considered additional cleaning costs but it did not consider additional food as a DRE as Mr Y was co-operative taking his medication. The Council quoted its DRE guidance and said it had not considered any travel expenses but was prepared to review the decision. The Council acknowledged the delays Mrs X experienced and explained all social work staff were due to complete training about DRE assessments.

My findings

36. The Council has accepted the delays in reviewing Mr Y’s contributions to his care. This is fault and Mrs X had uncertainty over the contributions.
37. The Council has accepted Mrs X received inconsistent information about the financial assessments and DRE. This is fault and caused Mrs X confusion. The Council has identified necessary service improvements as a result of Mrs X’s complaint. The Council is providing all social care staff with training about financial and DRE assessments. This service improvement is sufficient remedy for the fault I have identified.
38. Statutory guidance states Councils should not be inflexible in the costs it accepts and should consider individuals circumstances when assessing DRE. The Council provided standard responses about not considering transport costs. Mr Y’s care plan from May 2022 clearly sets out the risks to himself and those supporting him when he travels in a car. The support plan explained Mr Y needs a larger people carrier due to his level of needs. As this is clearly stated in the care plan, and the Council has now agreed to consider transport costs, the Council was at fault for not considering the individual circumstances and instead providing standard responses. The Council has agreed to reassess Mr Y’s DRE including transport costs.

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Agreed action

39. To remedy the outstanding injustice caused to Mrs X and Mr Y by the fault I have identified, the Council has agreed take the following action within 4 weeks of my final decision:
• Apologise to Mrs X and Mr Y for not considering all DRE, not providing clear information and the delays in the case.
• Pay Mrs X £200 as an acknowledgement of the time and trouble she has spent pursuing matters after being passed between different Council departments .
• Hold a meeting to complete the new financial assessment with consideration for all DRE provided by Mrs X.
• Backdate a 50% reduction in Y’s contributions to July 2021 and refund the overpayments made.
• Remind staff of the Council’s responsibility to consider each complaint individually and not provide standard responses.
• Provide evidence the Council has delivered the training on financial and DRE assessments referenced at paragraph 38.
40. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

41. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X and Mr Y.

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Parts of the complaint that I did not investigate

42. I have not investigated any matters prior to October 2021. This is because there is no reason Mrs X could not have complained to us about these matters sooner.

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Investigator's decision on behalf of the Ombudsman