Summary: Ms X’s representatives complained the Council had not properly considered the allowance for disability related expenditure when deciding the contribution Ms X can make to her care. The main element of the complaint related to the money Ms X pays to her parents for her board. The representatives said that as a result of what they consider to be the Council’s failings Ms X was made liable for more care fees than she should. There was no fault by the Council

The complaint

1. I refer to the complainant as Ms X. She has a court appointed deputy, a solicitor, Mr Y. Mr Y solicitor’s practice acted in bringing this complaint on behalf of Ms X. The solicitors complained the Council had not properly considered the allowance for disability related expenditure when deciding the contribution Ms X can make to her care. The main element of the complaint related to the money Ms X pays to her parents for her board. The representatives said that as a result of what they consider to be the Council’s failings Ms X was made liable for more care fees than she should.

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The Ombudsman’s role and powers

2. 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)
3. A council should not adopt a blanket approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of councils that ‘fetter their discretion’ in this way.
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 considered the complaint and documents provided by the solicitors. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to the solicitors and the Council and considered any comments made.

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What I found

Deputyship

6. If somebody lacks the mental capacity to make decisions for themselves the Court of Protection may appoint a deputy to make decisions for that person. A deputy is usually a friend or relative of the person who lacks capacity, but in some circumstances, it could be a professional such as a solicitor or accountant, or another professional appointed by the court.

Disability related expenditure

7. Councils must assess a person’s finances to decide what contribution they should make to a personal budget for care. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25%. 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 amount is known as the Minimum Income Guarantee (MIG).
8. The National Association of Financial Assessment Officers (NAFAO) has issued guidance on how to apply the Care Act assessments for costs. Under that guidance where a disabled person is responsible for their living costs such as rent and mortgages these are considered as DRE. Someone living at home with parents and who is not responsible for those living costs will not therefore have these costs considered in their assessment.
9. If a person incurs expenses directly related to any disability someone has, the Council should take that into account when assessing their finances. The list of items which can be included as disability related expenses is not exhaustive.

Council’s policy

10. The Council’s policy states that allowances will be made for housing costs net of any benefit received towards these. The following will be considered as housing cost:
• Rent (less any electricity, heating, gas, water rates, food, or any service charge that would usually be expected to be paid for out of the cost of living allowance)
• Council Tax
• Mortgage Repayments
• Ground Rent
11. It goes on that where a service user lives with an adult carer and is not directly liable for housing costs, e.g. is not on the tenancy agreement, they will only be allowed a housing cost allowance if there is an increase to their carer’s costs as a result of the cared for person living there (for example a non-dependant deduction on housing benefit or loss of single person discount on Council). The allowance made in these circumstances will be equal to the additional cost to the adult carer.

What happened

12. In 2020 the Court of Protection appointed the solicitor as deputy. In early 2021 the solicitors asked the Council to carry out retrospective financial assessments. The solicitors questioned various items of disability related expenditure. There was correspondence between the Council and the solicitors over 2021 and into 2022. In August 2022 the Council set out it final position.
13. In March 2023 the solicitors complained to us. The key part of the complaint related to the way the money Ms X pays to her parents (with whom she lives) for her board is treated by the Council in terms of DRE.

Analysis

14. 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 others disagree.
15. Over 2021 and 2022 there was correspondence between the Council and the solicitors about the DRE allowances. The Council set out its final position in a detailed letter in August 2022. It gave its reasons on each of the matters raised by the solicitors. It referred to a previous decision by the Ombudsman (against another authority) which the solicitors had raised which related to DRE in relation to board. It correctly stated that the decision was critical of the Council because we considered it had not properly considered the matter. It explained that Ms X received the MIG, that she was not legally responsible for the house and could come to an arrangement with her parents for her contribution to household expenditure. It said it did not consider there were any exceptional circumstances to exercise its discretion in respect of the of the requested items.
16. In setting out the complaint to us the solicitors emphasised a slightly different point relating to a reference in the guidance as to how income from boarders should be treated. The Council has responded in detail to this point in its response to my enquiries about the complaint. It explains why it does not consider that it is relevant in this case and concludes that it does not alter its position.
17. The Council took into account all the relevant guidance, information from the solicitors and its own policies. It had regard to Ms X’s particular situation. It explained how it reached its conclusion based on all that information. There was no fault in how the Council reached its decision.

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Final decision

18. There was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman