Summary: Mr X complained about how the Council calculated what his son, Mr Y, should pay towards his care. The Council was at fault. This meant Mr Y paid more for his care than he should have for over a year. The fault also caused Mr X and Mr Y’s mother, Mrs X, avoidable frustration. The Council will apologise to Mr and Mrs X, reimburse Mr Y the money he should not have paid towards his care and issue a staff reminder.

The complaint

1. Mr X complained about how the Council calculated what his adult son, Mr Y, should pay towards his care. Mr X said this caused Mr Y financial hardship.

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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 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)
3. 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

4. I have considered:
• all the information Mr X provided and discussed the complaint with him;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
5. 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 law and guidance

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. 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)
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.
8. 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. This is set by national government and reviewed each year. A council can allow people to keep more than the MIG. (Care Act 2014)
9. 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

10. Mr Y has complex needs and contributes towards his care costs. In January 2023, the Council was arranging for Mr Y to start receiving 24/7 care at home, from a live-in care worker.
11. Mr and Mrs X say Mr Y’s social worker (social worker A) told them the Council had identified a suitable care provider and that Mr Y would need to pay £50 per week to cover the care worker’s food costs. Mr and Mrs X manage Mr Y’s money on his behalf.
12. In late January 2023, the Social worker A asked the Council’s financial assessment team to review Mr Y’s financial assessment because his expenses would be higher now he was paying for his care worker’s food.
13. The care provider started supporting Mr X in early February. Each week, Mr and Mrs X give Mr Y £50 of his own money for his food and £50 for the care worker’s food. Mr Y and the care worker purchase the food together. Mr and Mrs X say Mr Y and the care worker share almost all the food they buy and that they spend close to the full £100 each week. The care worker occasionally buys some food Mr Y is not able to eat and Mr Y keeps any money left over for future purchases.
14. The Council completed the financial assessment and did not treat the care worker’s food costs as disability related expenditure. Mr and Mrs X asked the Council to review its decision. They said Mr Y was required to pay £50 towards the care worker’s food each week.
15. In late December 2023, the Council completed the review. Records of the review show the Council considered that in other cases it would refuse to treat care worker food costs as DRE, because care workers were required to bring their own food to work. The Council considered if Mr Y had different circumstances to other people with live in care packages but found he did not. The Council refused to treat the food as DRE.
16. Mr X remained dissatisfied and complained to the Ombudsman.

Findings

Disability Related Expenditure

17. The Council was at fault in how it considered whether to include the care worker’s food as DRE. The Council refused Mr and Mrs X’s appeal on the basis that Mr Y did not have to pay for the care worker’s food. However, the social worker’s email in late January shows the Council was aware, before the care package started, that Mr Y was required to pay £50 per week for the care worker’s food.
18. While other people receiving 24/7 care may not have to pay towards their care worker’s food, and it is not clear why Mr Y has been asked to, the reality is that he is paying for his care worker’s food and that is part of the arranged care package. The Council failed to consider the individual circumstances of Mr Y’s case. The fault caused Mr and Mrs X avoidable frustration.
19. If the Council considered the food should be paid for by the care worker, it should have addressed this with the care provider. If not, the Council should have included the cost of the food in Mr Y’s overall care costs or treated it as DRE. Either way, Mr Y should not have been financially penalised. Ultimately, Mr Y has been paying more than he should have for his care for over a year. Based on the information Mr and Mrs X gave me about how much Mr Y and the care worker spend on food each week and what they buy, I am satisfied the care worker’s food costs amount to the full £50 Mr Y has been paying, or close to it.

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Agreed action

20. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Mr and Mrs X for the frustration and uncertainty they felt due to its failure to properly consider their request to treat Mr Y’s care worker’s food costs as disability related expenditure. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Reimburse Mr Y the £50 he paid for the care worker’s food between February 2023 (the start of the care package) and the date it makes a decision on how to treat the care worker’s food costs in the future, as set out below.
3. Decide how it will deal with the care worker’s food costs, with reference to paragraph nineteen of this decision. If the Council decides to treat the costs as DRE or as part of Mr Y’s care costs, it should amend his financial assessment to reflect that. The Council should make the amendment within one month of the date of my financial decision.
4. Remind staff making financial assessment decisions and on appeal panels that they must consider the individual’s circumstances when deciding what to treat as Disability Related Expenditure.
21. The Council will provide us with evidence it has complied with the above actions.

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Final decision

22. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman