Summary: Mr X complained the Council miscalculated his son’s, Mr S’s, Disability Related Expenditure (DRE). The Council accepted it made a mistake and credited the amount. Mr X says the Councils assessment is not accurate and the Council still owes Mr S some money. The Ombudsman has found the total amount repaid reflects the Councils offer and the amount owed has reduced to zero. The Council is not at fault.

The complaint

1. Mr X complained the Council miscalculated his son’s, Mr S’s, Disability Related Expenditure (DRE) from 2017 to 2022. The Council accepted it made a mistake, calculated how much was owed to Mr S and credited his account. It also made a payment of £200 to Mr X for his time, trouble and distress caused. Mr X accepted the payment but says the Councils assessment is not accurate.

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The Ombudsman’s role and powers

2. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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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What I have and have not investigated

5. I have limited my investigation to Mr X’s complaint about the amount to be refunded. I have not considered the Council calculations.
6. After bringing his complaint to the Ombudsman, Mr X also raised concerns about the Council changing Mr S’s contribution towards his fees. The Council confirmed it reviewed Mr S’s financial assessment in May 2023. The new financial assessment review and recent changes in contribution towards fees falls outside Mr X’s original complaint to the Council and the Ombudsman. I have not investigated this. Mr X will need to raise this with the Council as a new complaint and allow it to investigate before the Ombudsman can consider this.

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How I considered this complaint

7. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Care Act 2014, The Care and Support (Charging and Assessment of Resources) Regulations 2014, The Care Act Statutory Guidance.

8. Mr 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

Relevant legislation

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

What happened

13. I have summarised below the key events; this is not intended to be a detailed account.
14. Mr X brings this complaint on behalf of his son, Mr S.
15. Mr S is disabled and lives in domiciliary care. Mr X has historically dealt with Mr S’s financial matters on his behalf.
16. Mr S receives DRE. He pays a contribution towards his care.
17. Mr X complained to the Council at the end of March 2022. He raised concerns about the amount of DRE Mr S received.
18. The Council responded to Mr X at the beginning of June 2022. Mr X said he was not happy with the response at the beginning of July and asked the Council to review its decision.
19. A few days later, a Manager in the Finance Team telephoned Mr X to discuss his complaint. The Manager and Mr X agreed a revised weekly DRE amount for Mr S, to be backdated to April 2020. The Manager arranged for the total amount to be paid to Mr S’s bank account.
20. Mr X reviewed the figures and said he was not satisfied with the credit value or the Council’s explanation. He thought the Council had overcharged Mr S for his client contribution to care since 2017.
21. The Manager and Senior Manager met with Mr X in October 2022. Mr X explained his calculations for what he considered was the year-on-year increase in Mr S’s client contributions. Mr X said the DRE Mr S received was inadequate.
22. The Senior Manager reviewed the case and issued the final complaint response in January 2023. They decided to extend the new agreed figure for DRE back to the beginning of 2017. The Finance Team applied the revised client contribution to care and rebilled Mr S, taking into account outstanding invoices, invoices still to be raised and direct payment overpayments. The Council offered to refund Mr S just under £3,000. It also offered to pay Mr X £200 for his time and frustration in sorting the matter. The Council apologised to Mr X.
23. The following day, Mr X emailed the Council and said he agreed to the offer and provided bank details for the money to be paid into.
24. The Council made both payments at the beginning of February. Mr X confirmed the money was received.
25. Mr X contacted the Manager and said he was not happy with the figures.
26. The Senior Manager wrote to Mr X at the beginning of April. They explained the offer made in January was in full and final settlement of the matter which Mr X agreed to in writing and the payment was made as a result. The Senior Manager said they were confident the figures were correct and refused to consider the matter further.
27. Mr X complained to the Ombudsman in April 2023. He said the Council’s assessment was not accurate and set out his own calculations. It included the £3,000 that was paid into Mr S’s bank account. He said there was just over £2,000 outstanding which he thought was to be repaid by the Council not invoicing Mr S for his contributions towards care. He considered for the balance to reduce to zero, the Council should refrain from invoicing until the end of December. The Council started invoicing Mr S before Mr X considered it should have done. Mr X does not consider the full amount has been repaid.
28. In response to my enquiries, the Council confirmed Mr X accepted the offer to settle the matter and the Council made the payment in full.
29. The Council explained the gross credit due to Mr S was roughly £5,500. This is for the period January 2017 to the middle of November 2022.
30. At this time, Mr S had several unpaid and partially unpaid invoices for contribution towards his fees. These invoices totalled just under £400.The Council had also overpaid Mr S by £600 in direct payments. In addition, invoices were paused from June to the middle of November 2022 whilst the original complaint was ongoing, this was around £1,700. In total, Mr S owed the Council roughly £2,700.
31. Whilst the Council said it owed Mr S £5,500, Mr S owed the Council £2,700. The Council therefore refunded the difference which was £2,800.

Analysis

32. The Council’s letter to Mr X clearly set out its offer to settle the matter. It explained its calculations of the money it owed to Mr S in DRE payments, going back to 2017. It then clearly set out the money Mr S owed to the Council and deducted this from the amount to be refunded. The Council then refunded the difference. The amount Mr S owed to the Council and the amount the Council owed to Mr S added together, total the full amount the Council agreed to pay Mr S. The Council is not at fault.
33. The Councils letter was an offer to settle the matter. If Mr X did not understand the figures or thought they were wrong, he should have raised it as that stage and entered further discussions with the Council. He did not. Mr X accepted the offer, the Council made the payment. The Council cannot be at fault.

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Final decision

34. I have completed my investigation. The Council accepted it miscalculated Mr S’s DRE and reimbursed Mr S. The Ombudsman found the total amount repaid reflects the Councils offer, the amount owed was reduced to zero. The Council is not at fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman