Summary: Mr X complained that the Council would not allow Miss Y’s horse riding costs against her contribution to her care and support charges. He says she needs this activity and the Council did not consider all the information. Paying for this means she cannot afford to take short breaks when she needs them. We recommended the Council consider the information it did not consider previously. It has agreed to do this.

The complaint

1. Mr X complained on Miss Y’s behalf, that the Council:
• unfairly decided not to allow expenditure for Miss Y’s horse riding, against her contribution to her care and support charges;
• did not consider the person-centred and well-being approach of the Care Act 2014 when making its decision;
• failed to consider the exercise needs caused by Miss Y’s specific condition;
• did not take account of all information provided;
• failed to reply to a further financial assessment request after Mr X submitted a letter from Miss Y’s GP;
• failed to consider joint funding with the NHS;
• delayed making its decision.
2. Mr X says Miss Y needs horse riding to help with her with her sense of movement, balance and body position. She has been unable to access Riding for the Disabled services because of a long waiting list. Mr X says that because Miss Y funds the horse riding in full herself, she is not able to take escorted short breaks which she needs.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

We consider Mr X to be a suitable person to complain on Miss Y’s behalf.

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How I considered this complaint

6. I considered information from both Mrs X and the Council.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Background

Charging for social care services: the power to charge

8. 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)

Disability Related Expenditure

9. 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.

What happened

10. Miss Y has Down’s syndrome and lives in supported accommodation some distance from her parents. Miss Y had a financial assessment following her first adult social care needs assessment. Mr X asked for the Council to allow for the cost of horse riding against the contribution she had to pay towards her care and support. It refused and Mr X appealed. The Council did not uphold Mr X’s appeal. It said:
• “I have considered the original decision…The guidance is that allowances for disability-related expenses can be agreed when…the expense is a necessary need specifically related to the person’s disability or illness…In this case I do not accept the view that the cost is a necessary cost specifically related to [Miss Y’s] disability.”.
• “I accept the universal benefits you have described but the need is not supported by a health professional and were it to be a health need it would be for the GP to consider under social prescribing provisions.”.
• “I have taken a view that activities which confer a health benefit are not automatically able to be considered a disability related expense.”.
• “I believe that the disability related expenses have been fairly considered and this one has been reasonably declined.”
11. I consider this sets out that the Council has properly considered the request. However, Mr X subsequently provided the Council with a letter from Miss Y’s GP, and it did not consider this. This caused a potential lost opportunity for Miss Y, and it should now consider this.

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Agreed action

12. To remedy the injustice caused, I recommended the Council:
• Apologise to Mr X.
• Consider the letter from the GP and whether this has any effect on its decision about disability related expenditure.
13. The Council has agreed to complete these actions and should do this within two months of my final decision. It should provide us with evidence it has complied with the above actions.

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Final decision

14. I have completed my investigation. When the Council completes the agreed action, it will remedy the injustice it caused.

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Investigator's decision on behalf of the Ombudsman