Summary: Mrs X complains the Council has failed to deal properly with her financial assessment by failing to take account of all her disability-related expenditure (DRE), leaving her to pay more than she can afford to pay for her care. The Council has not dealt properly with all Mrs X’s requests for DRE, leaving doubt over what she should be paying toward the cost of her care. It needs to reconsider some of her requests and take action to ensure it improves the way it deals with DRE in future.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council has failed to deal properly with her financial assessment by failing to take account of all her disability-related expenditure, leaving her to pay more than she can afford to pay for her care.

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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. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, sections 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Mrs X;
• discussed the complaint with Mrs X;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Mrs X and the Council, for me to consider before making my final decision.

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What I found

What happened

5. Mrs X has disabilities which affect her mobility
6. In January 2023 Mrs X sent the Council a list of her DRE which included 18 items. She claimed £86.88 a week in DRE.
7. In February Mrs X sent the Council further information in support of her claim for DRE. She said Occupational Therapy had recommended bathroom rails and a stairlift, but she was refused funding so paid for them herself. She had lost the use of her legs in 2018 for 12 months due to inflammation of the soft tissue, which could re-occur. Her mobility never fully recovered, so she could no longer walk outside or drive an automatic car. The NHS had suggested buying equipment to aid recovery. She therefore bought a bed rail, front door grab rail, crutches for upstairs (the NHS provided crutches for downstairs) and a step to access the back garden. She bought a mobility scooter as she could not propel her manual wheelchair very far. As she cannot use her legs when driving and has disabilities in her arm and hands, she needed electronic hand controls which cost a lot more. Motability paid for driving lesson to use the electronic hand controls but not the dual controls needed for an instructor to be in the car with her. She was struggling to use the laptop and tablet shared with her husband because of her disabilities, so now used a stand-alone computer. She bought a commode in December 2021, after a fall which left her in bed for six weeks.
8. When the Council replied in March, it explained why it would not include these items as DRE:
• Shower rail, bath rail, shower stool, stairlift, sock/tights aid, bed rail, front door rail, step with two handrails, commode, wheeled walker, and crutches – because the NHS provided such items, subject to an Occupational Therapy assessment.
• Mobility scooter, advance payments and adaptations to mobility vehicle; additional care brake for an instructor to teach hand controls – because the Motability scheme allows the PIP (personal independence payment) to be exchanged for a care, wheelchair accessible vehicle, scooter or powered wheelchair. Advanced payments and adaptations were optional extras and therefore outside the scope of DRE.
• Incontinence products – because they are provided by the NHS.
• Additional mobility fuel expenses – because Mrs X needed to provide more information on why the costs were higher than standard costs.
• Additional housing fuel costs – because the minimum income guarantee was there to cover living costs.
• Personal computer – because it was a fairly typical expense, and the cost did not exceed the standard cost.
• Allowances for activities (chair yoga and hobbies) – because Mrs X could discuss chair yoga with her Consultant and Mental Health Therapist if it had been recommended as therapy.
9. In April, the Council updated Mrs X’s financial assessment, to take account of changes in benefit income. It disregarded £43.83 in DRE, its standard allowance for someone with her income (it allows 10% of the value of some benefits). It said Mrs X could afford to pay up to £27.73 a week towards the cost of her care. Mrs X complained to the Council about the failure to take account of all her DRE.
10. When the Council replied in May, it denied failing to consider her DRE properly, as it had taken account of the information and evidence she had provided. It said:
• Aids, adaptations and equipment (£11.22 claimed) – Occupational Therapy had assessed Mrs X and discussed a disabled facilities grant but as this was means tested, she was told she would not be eligible. Recommendations had been made to provide aids, adaptations and equipment but due to personal preferences, wishes and desires, Mrs X chose to buy alternative products.
• Mobility requirements (£31.88 a week claimed) – The Motability scheme allowed her to buy a car, wheelchair accessible vehicle, scooter or powered wheelchair. Any additional expenses were outside the scope of DRE. Mrs X should appeal to the Department of Work and Pensions if her benefits were not enough to meet her needs.
• Incontinence products (£2 a week claimed) – the cost of Mrs X’s incontinence products was less than Mrs X’s standard allowance for DRE (£43.83).
• Housing fuel costs (£33.69 a week claimed) – The minimum income guarantee (£130.05 a week for Mrs X) was there to meet basic living costs (rent, food and utilities). Mrs X’s fuel costs were not above the standard household amounts identified by the Office for National Statistics, so were not DRE.
• Personal computer (£0.96 a week claimed) – although this met Mrs X’s needs, in a way that a laptop or tablet could not, a personal computer was a fairly typical household expense, and the cost was not above the standard cost
• Social activities (£5 a week claimed for chair yoga, £1.92 for hobbies) – although it now accepted this was DRE, it said her standard DRE allowance (£43.83) covered the cost.
11. Mrs X appealed the Council’s decision. When the Council replied in July, it said:
• Aids, adaptations and equipment were funded by the NHS. Under its charging policy, where expenditure cannot be verified or where reasonable alternatives are available at a lower cost or for free, the expenses may not be included or may be restricted to a lower cost determined by the Council. It would not allow DRE for the private purchase of products, as recommendations had been made to provide aids, adaptations and equipment.
• Mobility requirements were funded by the Department of Work and Pensions PIP mobility component. Pressures on the Council’s social care budget meant it could not allow DRE where there were alternative sources of funding. She should raise an appeal with the Department of Work and Pensions if its funding was not enough to buy and adapt a vehicle to meet her needs.
• The standard annual cost of household fuel for a property like Mrs X’s was £2,436.37 and therefore higher than the cost of fuel for Mrs X’s home.
• If the cost of buying a personal computer was associated with Mrs X’s disability had been higher than the standard cost, it would have considered the cost as DRE. But Mrs X had not bought a personal computer because of her disability.
• The cost of social activities it had agreed as DRE were covered by the standard allowance of £43.83 a week. The additional activities claimed (socialising and holidays) were not costs arising from Mrs X’s disability, but were costs most people would incur.
• It noted Mrs X had agreed to pay for incontinence products out of her standard allowance for DRE.
12. In October, following changes in Mrs X’s circumstances, the Council reduced her maximum weekly charge to £17.53 a week from 31 July 2023.

Statutory and administrative background

13. The Care and Support Statutory Guidance (CSSG) says:
• “Where disability-related benefits are taken into account, the local authority should make an assessment and allow the person to keep enough benefit to pay for necessary disability-related expenditure to meet any needs which are not being met by the local authority.”
14. CSSG includes a list of items (not intended to be exhaustive) which should be included as DRE, which includes:
• Heating costs above the average level for the area and housing type.
• Purchase, maintenance and repair of disability-related equipment, which may include IT costs.
• Other transport costs necessitated by illness or disability, over and above the mobility component of DLA or PIP (Disability Living Allowance/Personal Independence Payment).
15. CSSG says it may be reasonable for a council not to allow for items where a reasonable alternative is available at lesser cost. For example, a council might adopt a policy not to allow for the private purchase cost of continence pads, where these are available from the NHS.
16. The Council’s Guidance on Disability Related Expenditure 2016, available on its website, says it will allow:
• £3.75 a week for a manual wheelchair
• £9.12 a week for a powered wheelchair
• Up to £5.88 a week for a stairlift (actual cost divided by 500 representing an anticipated 10-year lifespan)
• The actual gas and electricity charges paid, averaged over a year, minus the annual average amounts (based on the NAFAO – National Association of Financial Assessment Officers – recommended allowances). Allow up to £10 per week paid above the average charge.
• Travel and transport cost – Allow the actual costs of transport averaged over a calendar year, net of any DLA/PIP Mobility Component if they are incurred solely or mainly due to disability up to a maximum of £21.80 a week.
17. The Council’s policy lists items it will not usually include as DRE. The list includes:
• Social and leisure
• Continence products, which should be provided by the NHS
• Communication needs, as telephone or internet access is regarded as an everyday living expense, unless it can be proved that additional costs have been incurred as a result of a customer’s disability.

Is there evidence of fault by the Council which caused injustice?

18. There was no fault by the Council over the way it dealt with Mrs X’s request to include these items as DRE:
• Continence products – The Council was entitled to turn this down as they are available from the NHS.
• Heating costs – The Council was entitled to turn this down on the basis Mrs X’s costs are not above the average.
• Social activities – The Council has now accepted some of Mrs X’s claims and explained that other’s do not arise from her disabilities.
19. However, the Council has not properly addressed Mrs X’s claims relating to:
• Aids, equipment and adaptations, as the Council has not addressed Mrs X’s argument that some of the equipment on offer would not have met her needs.
• Stairlift, as its own policy provides for this to be accepted as DRE. Contrary to what the Council has suggested, the NHS does not usually pay for stairlifts, but they may be paid for by a Council funded disabled facilities grant, but it appears Mrs X did not qualify for one, so had to pay for a stairlift herself.
• Mobility/transport costs, as CSSG provides for these to be included as DRE if they exceed the mobility component of DLA or PIP.
• Personal computer, as the Council has not addressed Mrs X’s claim that buying a laptop was not a typical household expense but entirely due to her disability, as she and her husband had already bought other equipment which she could no longer use because of a worsening of her condition.
20. It is not for the Ombudsman to say what items the Council should include as DRE. Where we find fault with a council over the way it has addressed a request for DRE, we recommend it reconsiders its decision addressing any faults we have identified. Unless the Council agrees DRE which exceeds its standard allowance (£43.83 for Mrs X), it will not affect what she has to pay toward the cost of her care.

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Agreed action

21. The Council has agreed to take action to remedy the injustice it has caused:
• Within four weeks, reconsider Mrs X’s claims for DRE for the stairlift, aids, equipment and adaptations, and the personal computer.
• Within eight weeks:
1. update Mrs X about its position on mobility/transport costs (to allow time for it to consult the Department of Work and Pensions);
2. identify the actions it is going to take to ensure it improves the way it deals with DRE in future.
22. The Council should provide us with evidence it has complied with the above actions.

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Final decision

23. I have completed my investigation on the basis there has been fault by the Council causing injustice which requires a remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman