Summary: Mrs C complained about the way the Council has dealt with her daughter’s direct payments for a personal assistant and her disability related expenditure. Mrs C says her daughter has accumulated outstanding care costs which has caused them both distress. We have found fault in the financial assessment process but consider the action already taken by the Council of an updated assessment together with the agreed action of an apology and symbolic payment provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complains on behalf of her daughter Miss X as follows:

• The Council incorrectly required Miss X to fund her personal assistant and made that decision without notifying her or her mother, who is her representative. Although it advised her to apply for her specific food and exercise needs as disability-related expenditure, it has since refused to accept them.
• Miss X has already accumulated a £4,000 bill for unpaid care costs which she cannot repay. This has already had a negative impact on Miss X’s health and that of her mother, who acts as her representative. Without funding for her personal assistant, Miss X’s wellbeing and independence will suffer further, particularly as her mother is now living abroad.
• Miss X considers that the Council should accept some of her food and exercise costs as disability-related expenditure which will allow her to retain her personal assistant without using all her Personal Independence Payment.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

5. I read the papers provided by Mrs C and the notes of her telephone discussion with a colleague. I have also considered the Council’s response to our enquiries. I have explained my draft decision to Mrs C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

Charging for social care services: the power to charge

6. 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)

How to assess; Thresholds; DRE

7. 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. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.

Disability Related Expenditure

8. 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.

Direct payments

9. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.

Key events

10. The Council completed a Care Act assessment of Miss X’s needs in July 2020. At this time Miss X had moved home temporarily to live with her mother. The outcome of this assessment was that Miss X had eligible needs. The Council completed the care and support plan in September which set out a package of four hours of support weekly via a direct payment (DP) which Miss X would use to employ a personal assistant (PA). Following this, the Council provided detailed information about using DPs and a PA to Mrs C and Miss X.
11. The Council completed a provisional financial assessment in September 2020 which resulted in a nil contribution from Miss X towards the cost of her care. This assessment advised Miss X that it was her responsibility to inform the Council if her financial circumstances changed. The covering letter explained the Council reserved the right to amend the financial assessment to reflect any increase in capital or income and to backdate the assessment where appropriate.
12. The Council sought additional information to verify the above assessment. Mrs C provided additional information including details of Miss X’s September award of Universal Credit to the Council in October 2020. The financial assessment was subsequently reviewed which assessed Miss X should pay £16.48. A further assessment was completed in December which assessed Miss X should pay £95.39. There followed further financial assessments in January and February 2021, which assessed Miss X should pay £110.89 and £91.19 respectively towards the cost of her care.
13. Mrs C and Miss X confirmed they were ready to start the recruitment process for a PA in February 2021. The Council provided further information about how to recruit a PA and use the DP budget in March. Mrs C contacted the Council about the intended accommodation for Miss X. The Council provided further support with the recruitment process during May and details of payroll support. Mrs C confirmed a PA had been recruited in May and was due to start in early July after Miss X moved into her flat. Mrs C has confirmed the PA started in July and Miss X moved into her flat in September.
14. The DP arrangement started in July. The Council has provided a copy of the DP agreement which set out the terms of the personal budget for self-directed support of £72.01 weekly with no financial contribution required from Miss X. The DP agreement is signed and dated July 2021. The agreement highlights that Miss X will be financially assessed and may be required to pay a contribution which would form part of the DP and would be informed of the amount of any contribution she was required to pay. The Council has accepted it should have provided a full financial assessment breakdown at the point the original assessment was amended to include additional benefits that were by then in payment. However, I note Mrs C and Miss X were made aware of the contribution from the DP award letter also issued in July before the DP arrangement started. Mrs C says neither she nor Miss X received a copy of the DP agreement or any of the financial assessments or covering letters at the time. I have reviewed the documents and can see no evidence these were not received due to some fault by the Council.
15. Miss X started to receive invoices in September for the period from 19 July when the DP was paid. The Council explained it had completed financial assessments and decided Miss X could afford to pay towards the cost of her care. The Council highlighted it was possible to seek DRE. The Council has no record that Mrs C raised a concern about not receiving previous information. Mrs C recalls a phone conversation with the Council in September, where she remembers telling the officer Miss X had not had an assessment or outcome. I have not investigated this matter further as there is insufficient evidence of fault by the Council and it went on to complete a fresh financial assessment so there is no significant injustice.
16. The Council completed a financial assessment in November which found Miss X should contribute to the cost of her care in the amount of £59.48.
17. Mrs C provided additional information to the Council in early November about Miss X’s living arrangements and asked for the following costs to be considered as DREs: a gym membership, one to one weight training sessions, mobile telephone contract, purchase of frozen vegan meals and a cleaner. Mrs C explained Miss X struggled to maintain a healthy weight due to sensory issues with taste and texture (as confirmed by sensory needs assessment) and when struggling with mental health issues the ability to prepare food or even eat could be too much and she often ended up on liquid substitutes for days at a time. The decision to purchase frozen meals had helped with these issues.
18. Mrs C provided a GP letter to the Council in December as evidence for the claimed DREs for frozen food. The GP letter confirmed Miss X had a diagnosis of autistic spectrum disorder as well as anxiety and depression. The letter noted Miss X lived alone and had been purchasing frozen meals and struggled with sensory issues and due to her mental health issues with the ability to prepare food.
19. The Council wrote to Miss X towards the end of March 2022. This set out that during the recent financial assessment DRE had been included for consideration for a personal trainer and a special diet. The Council did not accept either of these items were DREs and provided its reasons. The letter set out the right to appeal.
20. Mrs C provided a letter from a consultant psychiatrist in April 2022 that sought a further financial assessment so that Miss X could continue to afford the cost of her PA. The Council completed a financial assessment in April which found Miss X should contribute to the cost of her care in the amount of £61.28.
21. Mrs C made an appeal about the Council’s financial assessment at the end of May. Mrs C stated Miss X did not have enough income to pay the cost of her PA. Mrs C also asked the Council to reconsider its decision not to accept the costs of a personal trainer and special diet as DREs.
22. The Council wrote to Mrs C at the end of July with the outcome of the appeal. The Council noted its letter at the end of March had provided the reasons these costs were not considered to be DREs. The Council also confirmed it had reviewed Miss X’s needs as identified in her Care and Support Plan and supporting medical information before reaching its decision not to uphold the appeal. The Council also took the opportunity to review the financial assessment and confirmed it assessed Miss X as being able to contribute £61.28 from April towards the cost of her care. The Council explained how to seek a review of this decision.
23. The Council completed a review of Miss X’s care and support plan in October. The resulting care and support plan provided a personal budget of £72.01 weekly for four hours each week.
24. Mrs C completed an online financial appeal at the end of November. Mrs C ticked this was a second appeal as she was unhappy with the outcome of the first appeal. Mrs C highlighted her concern that the Council’s decision not to accept Miss X’s DRE meant she would no longer be able to afford to pay her PA to support her in her day to day life and sensory difficulties which would most likely result in a deterioration of her health. Mrs C noted she no longer lived in the UK and so was no longer able to support Miss X. This asked the Council to provide financial support to allow the continuation of Miss X’s PA and to reconsider its decision about the frozen meals and exercise not being DREs. Mrs C attached 10 documents to support the appeal.
25. The Council has provided details of its consideration of the above appeal and appeal decision dated mid-January 2023. The Council noted the requests for DRE in relation to the purchase of particular ready meals and exercise classes were choices and there were other less expensive options available. The Council also noted the difficulty in food shopping but that Miss X’s bank statements showed multiple supermarket transactions and at other leisure venues. The Council decided there were no grounds to amend Miss X’s financial assessment to include these as DREs based on the information provided.
26. The Council has confirmed it has not sought to recover the outstanding care fees from Miss X pending the outcome of the Ombudsman’s investigation. The Council has also confirmed it is happy to discuss an affordable repayment schedule with Miss X. The Ombudsman would welcome this action.

Further explanation about financial assessment

27. The Council originally advised it was made aware of a change in Miss X’s income in April 2021 through its own annual ‘uprating’ process (increases in state benefits). The Council says neither Mrs C nor Miss X advised it of the change in financial circumstances. However, the Council has subsequently advised the Ombudsman this information was incorrect and accepts it was informed of a change in Miss X’s benefits in February 2021. The Council further accepts that if it had sent the detailed financial assessment documents at this time it may well have triggered a request for a review which would have resulted in the charge that was eventually put in place in November 2021 of £59.48 per week already applying by the time the DP started. The Council has confirmed to the Ombudsman that it has now amended the financial assessment to this figure from the start date of the package of care in July 2021 and advised Mrs C. The Council has confirmed it will include this change in the next invoice raised.
28. The Council has also confirmed the error in the assessment was not identified until September 2021 when Mrs C contacted it to say the £66.24 charge that had been notified was not affordable (this was the charge attached to the care package by the Direct Payment team when it commenced in July 2021). It was at this point the assessment was reviewed and the increased figure of £91.19 was applied and backdated to the dates of the changes in benefit income (in December 2020 and February 2021). The charge was then amended again from 2 November 2021, when the full review of the financial assessment was completed. The original charge applied was based on the annual uprating assessment (in line with increases in state benefits) which had not been checked due to there being no care package in place at the time of annual uprating. The Council has confirmed it has now changed its procedures to check every open financial assessment during its annual uprating process. The Ombudsman would welcome this action.

My consideration

29. The original September 2020 financial assessment resulted in a nil client contribution but this was subsequently revised several times during 2020/21 resulting in different amounts of client contribution before the DP arrangement actually started in July 2021. This was because initially Miss X’s income was less than her outgoings and so she was not asked to contribute towards the cost of her care. This situation subsequently changed and Miss X started to receive income in the form of Universal Credit and so the payments were backdated to the date of the claim.
30. It is clear that Mrs C and Miss X were notified there would need to be a contribution towards the cost of the care before the PA arrangement started and any costs were incurred. I see no evidence of fault on this point.
31. However, the Council has accepted there were errors in its financial assessment process as set out above. This is fault. Although the Council has now amended the financial assessment to correct these errors and advised Mrs C accordingly, which has provided a partial remedy, I consider this fault will have caused both Mrs C and Miss X a degree of avoidable uncertainty and inconvenience about how Miss X’s contribution had been calculated. I have recommended further action below to remedy this injustice.
32. I have found no evidence of fault in the way the Council considered the requests for DREs. I should explain the Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether you disagree with the decision the organisation made. In making its decision, the Council took account of the relevant guidance and information from Mrs C. The Council followed the appropriate procedures when making this decision and I cannot therefore criticise it.

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Agreed action

33. The Council will take the following action within one month of my final decision to provide a suitable remedy:
1. provide a written apology to Mrs C and Miss X for the avoidable uncertainty and inconvenience caused by the errors in the financial assessment process identified above; and
2. make a symbolic payment of £150 each to both Mrs C and Miss X to acknowledge their avoidable uncertainty and inconvenience (the Council should not offset these payments against any outstanding debt).
34. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation as I have found fault by the Council but consider the agreed actions above provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman