Summary: Mr X complained the Council failed to properly financially assess his daughter Miss Y’s disability related expenditure, and what her contribution should be to her non-residential care and support costs. The Council was at fault in how it considered this which caused avoidable distress for Mr X, and may have resulted in a financial loss for Miss Y. The Council agreed to review its calculations of changes to Miss Y’s financial assessment and apply refunds if needed, and offer to consider its decisions about disability related expenditure through its review and appeal processes. It will also apologise and pay a financial remedy to Mr X, review relevant policies and create guidance for its staff.

The complaint

1. Mr X complains on behalf of his adult daughter, Miss Y, who is disabled. Mr X says the Council wrongly refused to consider disability-related costs as Disability Related Expenditure (DRE), when assessing what Miss Y’s financial contribution to her care and support costs should be, in 2022. He also says the Council did not properly consider evidence he provided about the disability-related costs.
2. Because of this Mr X says:
• Miss Y is struggling to meet her living costs because the contribution the Council assessed she should pay towards her care and support is too high; and
• trying to resolve these issues caused him, and Miss Y’s mother, significant distress.
3. Mr X wants the Council to consider all claimed disability-related costs as DRE in its financial assessment of Miss Y and backdate this as appropriate.

Back to top

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 may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
6. 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)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. 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)
9. 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)

Back to top

How I considered this complaint

10. I considered:
• information provided by Mr X and discussed the complaint with him;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
11. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

What should have happened

Assessments and charging for non-residential care

12. Where a council decides an individual has eligible care and support needs, it must produce a care and support plan. This plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs. (Care and Support Statutory Guidance 2014)
13. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must carry out a financial assessment to decide what a person can afford to pay. The assessment must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. The Council must not charge more than the cost it incurs to meet a person’s assessed eligible needs. It must give the person a written record of the completed assessment. (Care Act 2014, section 14 and 17)
14. The Care and Support Statutory Guidance says a council must regularly reassess a person’s ability to meet the cost of any charges to take account of any changes to their resources. This is likely to be on an annual basis but may vary according to individual circumstances. A financial reassessment should take place if there is a change in circumstance or at the request of the person.
15. The Care and Support Statutory Guidance says in carrying out financial assessments, councils must take into account certain income and benefit types, including:
• Universal Credit benefit;
• the care component of Disability Living Allowance (DLA), or the daily living component of Personal Independence Payment (PIP), benefits which help with extra living costs for disabled people; and
• Employment and Support Allowance (ESA), a benefit which helps with living costs for disabled people who are unable to work.
16. The Care and Support Statutory Guidance says in carrying out financial assessments, councils must disregard certain income and benefit types, including:
• Direct Payments; and
• the mobility component of DLA or PIP.
17. The Care Act 2014 says people receiving care and support other than in a care home need to keep a certain level of income to cover their living costs. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by the government and reviewed each year. A council can allow people to keep more than the MIG. The Council’s non-residential charging policy says it follows the MIG set by the government.
18. When calculating an individual’s income for the purposes of financial assessment, a council may disregard any other source of income from its calculations, as it considers appropriate. (Care and Support (Charging and Assessment of Resources) Regulations 2014, section 15)

Disability Related Expenditure (DRE)

19. 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 non-exhaustive list of examples of such expenditure. This list says the cost of any day or night care needed to meet the person’s disability needs, which is not being arranged by the Council, should be included as DRE. The guidance also says:
• any reasonable additional costs directly related to a person's disability should be included;
• flexibility is needed and 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 may be reasonable for a council not to allow for items where a reasonable alternative is available at lesser cost; and
• transport costs necessitated by illness or disability should be included as DRE. This includes the cost of transport to day centres, over and above the mobility component of DLA or PIP. It may be reasonable for a council not to take account of claimed transport costs if, for example, a suitable, cheaper form of transport is available, but has not been used.
20. The Council’s policy on DRE says the following.
• It will consider reasonable allowances for DRE on a case-by-case basis.
• People can claim for the extra cost of any need identified in their needs assessment which is not accounted for in their personal budget, or paid for by some other kind of public funding.
• The cost must be reasonable. The Council can allow less DRE than the person asks for if the item or service is available elsewhere at a lower cost.
• People cannot claim for anything considered to be everyday living costs, e.g., food, clothing, water rates, telephone payments.

The Council’s non-residential care charging policy

21. The Council’s policies for non-residential care charging, and financial assessment appeals, say the following.
1. The Council will review each person’s care charges at least annually to ensure they are paying the appropriate charge for their circumstances.
2. People can ask for a review of their charges at any time, for any reason. A senior officer will normally make a review decision within 20 working days. If someone is not satisfied with the review outcome, they can escalate this to a ‘Charges Review Panel’ for further review by the relevant Head of Service, Team Manager, and a social care professional. The Council will invite the appellant to give their views to the panel and tell them the outcome within 14 days of the panel meeting. The panel will consider various factors including the person’s individual circumstances and social care needs, DRE, and whether it could apply discretion to take account of other expenses.
3. If someone is not satisfied with the review outcome, they have the right to request an appeal. A senior officer with no prior involvement will consider this.
4. The person also has the right to use the Council’s complaints procedure if they feel they have been unfairly treated by any aspect of the Council’s charging assessment process.

The Motability scheme

22. If someone qualifies for the ‘Higher Rate Mobility Component’ of DLA or PIP, they can choose to use this allowance to meet the cost of having a car. This is arranged through a national scheme called the Motability scheme.

The Equality Act 2010

23. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
24. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty. The ‘protected characteristics’ referred to in the Act are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
25. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act. Organisations will often be able to show they have properly taken account of the Equality Act if:
• they have considered the impact their decisions will have on the individual(s) affected; and
• these decisions can be challenged, reviewed, or appealed.

What happened

26. Miss Y is disabled and has eligible care and support needs. She needs full-time care and lives at home with her parents Mr and Mrs X, who are responsible for her finances. Miss Y receives direct payments from the Council so her family can arrange her care and support themselves.
27. In 2020, after Miss Y turned 18, the Council carried out a financial assessment to decide how much she should contribute to the cost of her care and support. Due to an administrative error, the Council did not charge Miss Y for contributions to her care until April 2021, when it carried out another financial assessment and realised its error. It decided it should not backdate the charges. However, it started to reduce Miss Y’s direct payments from April 2021 onwards to account for the contribution it had calculated.
28. Mr X disputed the change in Miss Y’s direct payments following the April 2021 financial assessment. The Council considered this as a complaint and responded in July 2021. It explained what had happened with Miss Y’s financial assessment and that she was now required to pay a contribution to the cost of her care. After the complaint the Council agreed with Mr X it would invoice Miss Y for her contribution separately, instead of reducing the monthly direct payment.
29. In October 2021, the Council told Miss Y it had decided to increase her direct payments.
30. In November 2021, the Council asked Mr X to provide evidence of Miss Y’s expenses, including any DRE, so it could re-assess her finances.
31. In December 2021, the Council told Miss Y it had decided to increase her direct payments again.
32. In late-January 2022, Mr X contacted the Council to provide information about Miss Y’s expenses, in response to its November 2021 request for evidence of any DRE. This had been delayed because he was waiting for information about Miss Y’s benefits from the relevant government department. Mr X asked the Council to include various items as DRE in its financial assessment of Miss Y.
33. Over the next nine months, Mr X and the Council had various communications about Miss Y’s financial assessment and DRE. In September 2022, the Council told Mr X it had decided it should disregard some of Miss Y’s income in its financial assessment. It said it had backdated this change to the point when Miss Y first started contributing to her care and support costs in April 2021.
34. Mr X was not satisfied with how the Council responded to his various queries about its financial assessments, so complained in November 2022.
35. Also in November 2022, the Council re-assessed Miss Y’s care needs and decided her needs had changed. It changed Miss Y’s care plan and the cost of care required to meet her needs increased.
36. The Council did not uphold Mr X’s November complaint, so he came to the Ombudsman at the end of December 2022.

My findings

37. The Ombudsman is not an appeal body. It is not our role to carry out financial assessments, decide what contribution someone should make to their care costs, or decide whether certain expenses should be classed as DRE. Our role is to investigate the process a council followed, to assess whether it made its decision properly. We look for evidence of fault causing injustice to the complainant. We cannot question the professional judgment of council decision makers where the process was not affected by fault.

Period investigated

38. The law says we cannot investigate events which happened more than 12 months before somebody complained to us, unless we decide there are good reasons to do so. Mr X came to the Ombudsman in December 2022. I have decided there are good reasons to investigate what happened after the April 2021 financial assessment, when the Council realised its error and started charging Miss Y a contribution to her care costs. This is because:
• as I will go on to explain, the Council did not properly follow its own review and appeal process for financial assessments. This meant it took longer than it should have to consider Mr X’s queries and concerns, which in turn delayed him in coming to the Ombudsman; and
• I cannot be satisfied the Council appropriately applied and backdated changes to Miss Y’s financial assessment from April 2021 onwards. My view is the Council will need to look back to April 2021 to ensure it suitably remedies any financial loss that may have been caused.

Record keeping

39. I am not satisfied the Council keeps clear and well organised records of its financial assessments for non-residential care. The Council provided different versions of the same documents at different points of my investigation. It provided two financial assessment records dated April 2021 and three records dated April 2022. This is because it completed retrospective re-assessments outside its annual April assessment cycle. However, it did not ensure its records were clear enough about what happened with the retrospective assessments, and what order it completed these in. It also did not provide all the information I asked for in its first response, which caused confusion.
40. I consider the Council’s failure to keep clear records, was fault. This contributed to the confusing way it communicated with Mr X about its financial assessments, as I will go on to describe. The Council should remedy the injustice caused.

April 2021 financial assessment

41. The Council said it wrote to Miss Y in April 2021 explaining its April 2021 financial assessment and how her direct payments would change. However, it could not provide evidence of the letter it sent so I cannot be satisfied it explained this properly. This was fault.
42. However, I am satisfied that when the Council responded to Mr X’s complaint in July 2021, it then properly explained this. Therefore, the confusion caused to Mr X by the Council’s failure to properly explain the April 2021 assessment earlier was relatively brief.

2021 increases to Miss Y’s direct payments

43. The Council told the family in October 2021 it would increase Miss Y’s direct payments. I found this was because it had re-assessed Miss Y’s care needs in June 2021 and decided she needed more care because she was finishing college. However, the Council delayed sending the letter about this until October 2021 and did not explain it related to the June re-assessment. The Council backdated the direct payment increase to the point Miss Y finished college in July 2021, but again did not explain this in the letter. I am not satisfied the Council properly explained the direct payment increase to the family. This was fault which caused confusion for Mr X. The Council should remedy the injustice caused.
44. The Council told the family in December 2021 it would increase Miss Y’s direct payments again. I found this was because it had reviewed her care plan in October 2021 and decided she needed more care to meet her needs. However, the Council did not explain the December 2021 letter related to the October care plan review. The Council backdated the direct payment increase to part-way through November 2021, but the letter did not explain when the Council had backdated this to, or why. I am not satisfied the Council properly explained the direct payment increase to the family. This was fault which caused confusion for Mr X. The Council should remedy the injustice caused.
45. Also, the Council has not provided evidence which satisfies me it correctly applied these direct payment increases in October and December 2021. The figures recorded for Miss Y’s indicative personal budget in her corresponding June and October 2021 care plans did not match up to the increase in direct payments set out in the letters. The costs of the individual elements of her care recorded in the care plans did not match up to the increase either. The Council said it billed Miss Y for her contribution to her care costs separately instead of reducing her direct payments. However, it has not provided enough evidence of how much it billed her for this or what payments it received. Therefore, I cannot be satisfied the Council correctly applied these direct payment increases. This was fault, which may have resulted in a financial loss to Miss Y. The Council should remedy any injustice caused.

September 2022 financial re-assessment to include “night-care allowance”

46. In September 2022, the Council reviewed its assessment of Miss Y’s finances. It realised that when it assessed Miss Y’s needs in June 2021, it recorded she needed and received care at night because of her disability. However, it had not arranged care at night, or accounted for this in the direct payments it made to her. The Council decided it should have included this care at night in its financial assessment as a disability related expenditure. This is because it was extra care which fell outside Miss Y’s care plan but was necessary for her disability.
47. This care at night was provided by Miss Y’s mother at home, at no external cost to the family. However, the Council decided it should apply the legislation described at paragraph 18, to disregard an amount of Miss Y’s income from its calculations to account for this night care. It decided that to account for this, it should treat Miss Y’s income as if she received a lower rate of the PIP care component when she in fact received the highest rate.
48. When the Council told Mr X about this change in September 2022, it described it as “an allowance that we are able to apply which is the difference between middle rate and higher rate PIP” (the care component). It said it had backdated this change to April 2021. When Mr X queried this further, the Council said it had decided Miss Y was eligible for this because she needed care and support at night to meet her needs, so it was a DRE.
49. When I asked the Council to explain this “night-care allowance”, it pointed to non-public guidance issued by an organisation which councils can pay for membership of, to seek support about good practice for financial assessments. The Council could not explain to Mr X, or to the Ombudsman, what legislation or statutory guidance it had used in applying this allowance. It also could not point to its own policies. The Council’s non-residential charging policy does not refer to any night-care allowance or explain any circumstances where the Council may apply an income disregard such as this.
50. I am not satisfied the Council clearly explained this to Mr X. This was fault, which caused confusion to Mr X. The Council should remedy the injustice caused.
51. I also cannot be satisfied the Council correctly backdated its calculations when it applied the night care allowance. It emailed Mr Y in September 2022 and said it would reflect this change by reducing the amount Miss Y still owed for her unpaid care contributions. However, the amount it told Mr Y it would credit to the account did not match up with the figures the Council said it had used in its calculations. Also, the Council has not provided enough evidence of how much it billed Miss Y for the contribution to her care costs or what payments it received. Therefore, I cannot be satisfied it refunded this properly. This was fault, which may have resulted in a financial loss to Miss Y. The Council should remedy any injustice caused.

November 2022 re-assessment of needs

52. In early-September 2022, Mr X told the Council a day service named in Miss Y’s care plan had increased its costs. He said he believed Council policy did not allow for the care plan and personal budget to be reviewed to reflect this change. Instead, he asked it to consider the weekly cost increase as a DRE in its financial assessment.
53. The Council at first said it would not do this because it could only provide funding for services reflected in Miss Y’s care plan and personal budget. Following internal discussion, the Council then decided it should re-assess Miss Y’s needs and review her care plan to check her personal budget was enough to meet her needs. It therefore told Mr X it could not include the increased costs as part of Miss Y’s DRE but had arranged a re-assessment to see if her needs had changed and her direct payments should be increased.
54. Mr X was not present for the November 2022 re-assessment, but his wife, Mrs X, was. Mrs X told the Council Miss Y no longer wanted to attend the day service that had increased its costs because it was not suitable for other reasons. It was agreed she should instead increase the number of days attended at a different day service she used.
55. The Council’s records showed the cost of care required to meet Miss Y’s needs increased following the November 2022 re-assessment, but her care plan showed no increase in her indicative personal budget. The Council provided records of direct payments made to Miss Y up to May 2023. This showed no increase in Miss Y’s direct payments following the November 2022 re-assessment. As I have explained, the Council has not provided enough evidence of how much it billed Miss Y for care contributions or what payments it received. Therefore, I cannot say the Council correctly amended Miss Y’s direct payments following the November 2022 re-assessment. This was fault, which may have resulted in a financial loss to Miss Y. The Council should remedy any injustice caused.

Disability Related Expenditure (DRE)

56. From April 2021 onwards, Mr X repeatedly raised queries about the Council’s assessment of Miss Y’s finances and said he thought it should account for other DRE. The Council repeatedly responded to Mr X on an ad hoc basis over this prolonged period. It did not provide a proper breakdown of Miss Y’s full financial assessment and DRE decisions, including all relevant figures used. It did not consider Mr X’s concerns through the financial assessment review or appeals processes set out in its policy when he challenged the Council’s position. This was fault, which caused Mr X frustration and confusion. The Ombudsman cannot say the Council’s decisions are wrong simply because fault occurred. It may be the outcome would have been the same if the Council had followed the review and appeal processes set out in its policy. Or it could be the case the fault caused Miss Y a financial loss. The Council should remedy any injustice caused.
57. For completeness I will address each of the queries Mr X raised with the Council in more detail. However, where I have identified fault, this is with the process followed or the explanation given, not with the decision itself. The Council has discretion to make its own decisions about DRE, as long as it follows relevant statutory guidance and its own policies. It may be the financial outcome for Miss Y would have been the same if there had been no fault in the process.

Upfront payment for Motability car

58. The Council decided in its assessment of Miss Y’s care and support needs that she would need support to travel to, and access, her community-based care. Mr X said the family had used the Motability scheme, as described at paragraph 22, since Miss Y was a young child. In January 2022, Mr X told the Council the family had selected a new Motability car which needed an upfront payment to secure. Mr X asked the Council for the cost of the upfront payment to be spread across the three-year term of the car and included in its financial assessment of Miss Y as a weekly DRE.
59. The Council told Mr X it would not consider the upfront payment as a DRE in its assessment because other suitable Motability cars were available with no upfront cost, or a smaller upfront cost. Mr X told the Council Miss Y had visited a dealership in person to try each car as a passenger and check whether it was suitable for her physical disabilities. He did not consider there were any cheaper cars available when they selected the car which were suitable for Miss Y’s specific accessibility needs.
60. I am not satisfied the Council properly considered this, which was fault. This is because:
• I would have expected the Council to keep records of the evidence it considered in making its decision. This would include contemporaneous evidence of how it considered Miss Y’s individual circumstances, and found a suitable alternative was available for a lesser cost, at the time the family selected the car. The Council told Mr X at the time of his query that it had found cheaper alternatives that met Miss Y’s individual needs. However, it did not keep records of any research it undertook at the time. Therefore, there is not enough evidence of how the Council considered Miss Y’s individual circumstances and I cannot be satisfied it fully considered this; and
• it did not follow its own policies because it did not consider Mr X’s concerns through the review or appeals process set out in its policy when he challenged the Council’s position. Therefore, I cannot be satisfied this request from Mr X received the necessary scrutiny, in line with the Council’s agreed policy, about whether it should apply discretion.

Fuel costs for travel to physiotherapy appointments

61. In January 2022 Mr X also asked the Council to consider fuel costs for Miss Y’s weekly physiotherapy appointment as DRE in its financial assessment. He said this was a journey of significant distance made solely because of her disability. He also said the Council should calculate mileage costs using a standard fuel expenses rate.
62. The Council told Mr X it would need more information about Miss Y’s total weekly fuel costs, not just the physiotherapy appointment, to consider this as part of its financial assessment. It said this was because:
• it has to ensure it does not unfairly disadvantage those who choose to keep their PIP mobility payment instead of joining the Motability scheme. To do so it needs to compare an individual’s weekly fuel costs with the weekly PIP they would receive if not on the Motability scheme; and
• the Motability scheme covers the cost of the car, maintenance, and insurance. Therefore, it could not use a standard fuel expenses rate because this also accounts for these extra costs so it would need to calculate the cost of the fuel alone.
63. Mr X had multiple opportunities to respond to the Council’s requests for evidence of Miss Y’s full weekly fuel costs. He did not provide this information and said he felt the Council should consider the cost of the physiotherapy trip on its own. I do not consider the Council was at fault as I am satisfied it properly explained to Mr X that it did not have enough evidence to consider this as part of its financial assessment of Miss Y. Mr X told me he misunderstood the Council’s explanation about this.

Costs for activities undertaken with Personal Assistants

64. Miss Y’s care plan said she needed 20 hours of Personal Assistant (PA) support per week to support her to:
• access community-based activities; and
• develop and maintain social and personal skills.
65. In June 2022, Mr X asked the Council to consider costs Miss Y incurred for food, transport, and entrance fees or tickets while out with her PAs as DRE. He said these purchases were necessary to increase Miss Y’s independence and so meet her identified care and support needs. Mr X provided records and receipts to the Council for the costs he felt it should consider as DRE.
66. The Council said:
• it had decided Miss Y’s needs for community engagement should be met through PA support and day services, the costs of which it had included in her personal budget. It would only increase Miss Y’s personal budget, and so her direct payments, if Miss Y’s social worker decided extra care and support should be included in her care plan to meet her needs; and
• it would also not consider these costs as DRE because it considered them to be everyday living costs rather than costs directly related to Miss Y’s disability.
67. I am not satisfied the Council properly considered this because it did not consider Mr X’s concerns through the review or appeals process set out in its policy when he challenged the Council’s position. Therefore, I cannot be satisfied this request from Mr X received the necessary scrutiny, in line with the Council’s agreed policy, about whether it should apply discretion.

Rent costs

68. In January 2022, Mr X told the Council Miss Y paid rent to her parents. He asked it to include this as part of Miss Y’s expenses in its financial assessment.
69. The Council at first asked for copies of a tenancy agreement to evidence Miss Y’s rent. It appears the Council thought Mr X was asking it to include Miss Y’s rent as DRE in its assessment. This meant it wanted evidence of a tenancy agreement to see if there were disability-related “on costs” associated with Miss Y’s accommodation, which it potentially could count as DRE. The Council later said it could not consider Miss Y’s rent regardless of any evidence Mr X provided, because this was not a cost relating to her disability.
70. The Council knew Miss Y lived at home with her parents so the cost of her rent would not include “on costs”, as may be the case for supported accommodation. Therefore, it should not have asked for a tenancy agreement. It should have recognised Mr X wanted it to include the rent as one of Miss Y’s outgoings in its calculations, not consider this as DRE. Although I accept this was a misunderstanding, it was still fault.
71. As I have already explained, I am also not satisfied Mr X’s query about this received the necessary scrutiny because the Council did not consider this as part of a financial assessment, review, or appeal, as is set out in its policy.
72. This fault caused Mr X confusion. Had the Council properly considered this query, it may be the financial outcome for Miss Y would have been the same, or it could be the case the fault caused her a financial loss. The Council should act to remedy the injustice caused.

The Equality Act

73. As I have explained, there was not enough contemporaneous evidence of how the Council made its decisions about what Miss Y could afford to contribute to her care costs. Therefore, I cannot be satisfied it properly considered Miss Y’s individual circumstances and disability.
74. Therefore, I am not satisfied the Council had due regard to its duties under the Equality Act to Miss Y as a person with a disability, in how it made its financial decisions. I cannot be satisfied the Council properly considered the impact its decisions would have on Miss Y. It also did not properly ensure its decisions could be challenged, reviewed, or appealed, as outlined at paragraph 25, because it did not follow its published review or appeal process, that is, the process it has agreed should be in place to ensure it properly considers individual circumstances and meets its statutory duties. This was fault.

Back to top

Agreed action

75. Within one month of our final decision, the Council will:
1. apologise to Mr X for the faults we have identified and the impact those faults had on the family;
2. review its calculations to ensure it has correctly calculated and applied changes to Miss Y’s account across 2021 and 2022. It should ensure it has correctly calculated Miss Y’s personal budget, amended her direct payments to reflect this, and calculated any backdated refunds needed. It will provide evidence to the Ombudsman of this review and that the account is now correct. The review will include:
1. the October 2021 direct payment increase;
2. the December 2021 direct payment increase;
3. the September 2022 decision to disregard part of Miss Y’s income because she receives care at night outside her care plan; and
4. the November 2022 decision to increase Miss Y’s personal budget to meet her needs.
3. offer Mr X the opportunity for it to consider its 2022 DRE decisions through its financial assessment review and appeals processes; and
4. pay Mr X £300 to recognise the confusion and frustration caused by the way it has communicated with him about these issues.
76. Within three months of our final decision, the Council will review its non-residential charging policy to ensure it provides clear information about allowances it may apply where someone receives care at night outside their care plan, and how it will calculate this.
77. Within three months of our final decision, the Council will create guidance for relevant staff about financial assessments for non-residential care to ensure it:
1. keeps clear, well organised, and accurate records in line with its procedures for retention and disposal of records. Records will:
1. make clear what has happened when retrospective financial assessments have been completed;
2. include a detailed breakdown of all figures used in financial assessments, including the person’s income and benefits, daily living costs, DRE, and the personal budget needed to meet their needs; and
3. record all DRE considerations and decisions including full rationale and copies of any contemporaneous evidence considered.
2. properly communicates any outcomes or changes to the person (or their representative) including the decision rationale and a full breakdown of all relevant figures; and
3. properly considers challenges to its financial assessment decisions through its review and appeal processes to ensure it applies the required scrutiny when a decision is challenged.
78. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

79. I have completed my investigation. There was fault by the Council which caused avoidable distress for Mr X, and may have resulted in a financial loss for Miss Y. The Council agreed to my recommendations to remedy this injustice, review relevant policies, and create guidance for its staff.

Back to top

Investigator's decision on behalf of the Ombudsman