Summary: Mrs X complained the Council incorrectly calculated Mr Y’s care and support charges, and did not tell her about an outstanding debt. The charges were unaffordable and this caused distress. We found no fault in the Council’s financial assessments or in its consideration of Mr Y’s Disability Related Expenditure. It also kept Mrs X updated about Mr Y’s care charges. The Council was at fault for not contacting Mrs X to reassess Mr Y’s Disability Related Expenditure and for not telling her the outcome of its review. It agreed to apologise for the frustration and uncertainty this caused.

The complaint

1. Mrs X complained the Council incorrectly calculated her late father, Mr Y’s, care and support charges, which she said were unaffordable. She said the Council failed to include Disability Related Expenditure (DRE) and day care centre charges in its calculations.
2. Mrs X had Lasting Power of Attorney (LPA) for Mr Y’s finances, but complained the Council did not tell her about outstanding care and support charges for over a year, meaning there was a large bill. This caused worry and distress.

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The Ombudsman’s role and powers

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 investigated the Council’s financial assessments, how it assessed DRE, and how it calculated Mr Y’s care charges.
6. I did not investigate Mrs X’s complaint about the standard of care from a care provider. This was addressed by the Council in 2022 and is now a late complaint.

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How I considered this complaint

7. As part of the investigation, I considered the complaint and the information Mrs X provided.
8. I made written enquiries of the Council and considered its response along with relevant law and guidance.
9. Mrs 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

Charging for social care

10. 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)

Disability Related Expenditure

11. 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.

The Council’s assessment practice guidance on DRE

12. The Council’s procedure confirms DRE is not limited to what is necessary for care and support, and it will consider everything a person has to buy or pay for because of their disability.
13. The Council automatically ignores £17 per week from a person’s income. This is its standard DRE allowance. If a person receiving disability benefits believes they have more DRE than the standard allowance, they can ask for an individual assessment.
14. The person must provide evidence, such as invoices, receipts, or bank statements, of extra expenses incurred because of their disability or medical condition. If it is not possible to provide proof of expenses, the Council may accept other evidence at its discretion.
15. The Council is unlikely to approve expenses where the item claimed is available for free from the National Health Service (NHS). The Council also does not normally include travel costs as DRE as these are met through a person’s disability benefits.
16. Once the Council has reviewed the evidence, any DRE it allows that is above the standard rate of £17 will be applied to the person’s financial assessment as a weekly cost.
17. The Council calculates weekly costs by multiplying the claimed cost by the frequency it is paid, then dividing this by 52. For agreed one-off or large expenses, the Council will normally divide the one-off cost by 52 to get the weekly amount.
18. The Council then adds each weekly amount together. If the amount is higher than £17, then the higher amount is applied. If the amount is less than £17, the standard allowance of £17 remains the same.

Charging for permanent residential care

19. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
20. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
21. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.

Charging for temporary residential care

22. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period, such as respite care, or there is doubt a permanent admission is required. The person’s stay should be unlikely to exceed 52 weeks, or in exceptional circumstances, unlikely to substantially exceed 52 weeks. A decision to treat a person as a temporary resident must be agreed with the person and/or their representative and written into their care plan.
23. A council can choose whether to charge a person where it is arranging to meet their needs. In the case of a short-term resident in a care home, the council has discretion to assess and charge as if the person were having their needs met other than by providing accommodation in a care home. Once a council has decided to charge a person, and it has been agreed they are a temporary resident, it must complete the financial assessment in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance.

What happened

24. I have summarised below some key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
25. Mr Y suffered from dementia and needed help with some daily activities. He lived in supported living accommodation where he paid rent. He also paid towards his care and support which was arranged by the Council.
26. Mrs X asked the Council to assess Mr Y’s DRE to reduce his care fees. Mrs X claimed DRE for items including food, telephone, internet, pillows, bedding, nappies, wipes, a weighted blanket, blinds, a door alarm, and a camera.
27. The Council emailed Mrs X in January 2022 to say it was working on the claimed DRE but needed more information about some items. It also said solicitor’s fees, funeral plan, rent, food and toiletries are every day expenses which are not included.
28. The Council met with Mrs X in February to sign DRE forms. It again confirmed some items were not eligible. Mrs X said Mr Y was struggling to pay his care contribution and has a large bill, so she hoped including more DRE could help. She said she was considering cancelling Mr Y’s care, but would await the outcome of the DRE assessment.
29. The Council told Mrs X it needed to decide whether Mr Y’s bills are larger due to his disability or if they were what the average person would pay.
30. The Council wrote to Mrs X on 5 April 2022 confirming Mr Y’s weekly care charges would be £64.65. It included its calculations, which showed weekly income and deductions for Mr Y’s disability benefits, pension credit, DRE, and the Minimum Income Guarantee (MIG) (which is set by Government). The Council did not allow any extra DRE on top of its standard rate of £17.
31. The Council spoke to Mrs X in May 2022. Mrs X was still considering cancelling Mr Y’s care, and was exploring district nurse support.
32. The Council referred Mr Y for mental health input in November 2022 following inappropriate behaviour. Mrs X asked if Mr Y could do more activities to keep him challenged throughout the day, as this may reduce his inappropriate behaviour.
33. Mr Y’s social worker suggested a day centre, but said this would be chargeable. They also said Mr Y could use the activities and events offered at his supported living accommodation. They suggested Mrs X speak to the manager there.
34. Mrs X arranged for Mr Y to attend a day care centre, which she paid for.
35. The Council spoke to Mrs X in July 2023 about moving Mr Y into a care home for emergency respite care. This was at first temporary, because Mr Y’s inappropriate behaviour increased. Mrs X thought increasing Mr Y’s attendance at the day care centre may reduce his behaviours. She asked the Council to explore this if respite care proved unsuccessful. The Council also discussed Mr Y’s outstanding care charges. Mrs X said the Council’s bill was wrong and she had asked for DRE to be included, but the Council had not done so. The Council said it would send Mrs X another DRE assessment form.
36. Mr Y moved into emergency respite care on 19 July 2023. The Council referred Mr Y for another financial assessment due to the change in his care and support. It wrote to Mrs X with the result on 11 August, confirming Mr Y’s weekly charges for respite care would be £204.57 (backdated to 19 July 2023).
37. Mrs X emailed the Council in November 2023, asking what happened with DRE as it was not reflected in Mr Y’s invoices.
38. The Council said it advised Mrs X several months ago that it needs receipts of the claimed items to consider them.
39. The Council completed a financial reassessment for Mr Y at the end of November 2023, reducing his weekly charges to £128.17. It told Mrs X this was due to an error on the amount of pension credit it included in the previous assessment.
40. In December 2023, the Council and Mrs X agreed Mr Y could not return to support living, due to his care needs, and should stay in residential care. The Council wrote to Mrs X confirming Mr Y’s new weekly charges now he was in permanent residential care were £175.62.
41. Mrs X expressed concerns to the Council about Mr Y’s care home placement in January 2024. The Council agreed to look at other options. However, all other care homes consulted (apart from one which Mrs X said was too far away) declined Mr X due to his inappropriate behaviour and aggression.
42. After spending time in hospital, Mr X was discharged to a different care home, as medical professionals considered he needed nursing care because of his declining physical health.
43. The Council completed a financial reassessment for Mr Y on 15 April 20224. It reduced his weekly charges to £138.17, backdated to 28 August 2023.
44. Mrs X complained on 30 November 2023. Said she had been questioning Mr Y’s care bill for over 3 years, but the Council ignored her evidence of DRE. She said the Council told her Mr Y owed nothing, then sent more invoices. The current invoice is more than £10,000, which Mr Y does not have. She said she provided as much evidence for the DRE as she could and asked for a review of Mr Y’s charges.
45. The Council responded to Mrs X’s complaint on 3 May 2024. It said:
• There was a delay finalising Mr Y’s DRE application. However, this was because Mrs X did not provide necessary evidence to confirm whether Mr Y’s allowance would exceed the standard £17.
• It applies a standard DRE rate of £17 per week for all people receiving care in the community, and this is disregarded from a financial assessment.
• An officer took details of DRE from Mr Y, with Mrs X present, in February 2022. They asked for receipts. A different officer also told Mrs X it was unlikely the expenses claimed would amount to more than the £17 already disregarded from Mr Y’s weekly expenses, so he would not qualify for a further reduction.
• Most of Mr Y’s expenses were general expenditure and not additional costs linked to his disability.
• Mrs X raised DRE again in July 2023, and the Council told her there was an outstanding balance on Mr Y’s fees. An officer completed a new DRE application for Mr Y, but the Council could not agree some of the expenses. The NHS could supply some items, some costs were already included in Mr Y’s support plan, and some expenses were not receipted. Mrs X said she would provide receipts but did not.
• It would review Mr Y’s DRE again and apply some discretion as receipts may no longer be available. It also said it would consider backdating any increase.
• There was no evidence it told Mrs X that Mr Y did not owe anything, and it continued to send invoices every four weeks.
• Mr Y’s assessed charge was correct, based on the information the Council had about his income. However, it said it disregarded an additional amount for fees while in short term residential care and amended his invoice. The Council offered a payment plan to clear the outstanding charges.
46. Mrs X said the Council’s bill remains wrong. She said she was paying for Mr Y to attend the day care centre, and the Council had not taken this off the bill. She said the Council should pay for it. Mrs X said she was willing to pay some of the bill, but disputed having to pay it all, and said she did not believe the Council calculated it correctly.

My investigation

47. Mrs X told me she gave the Council what evidence she could for Mr Y’s DRE, but did not have receipts for some items.
48. Mrs X said Mr Y had no estate to speak of and the Council’s final bill is wrong.
49. I asked Mrs X for details or evidence of why the Council’s charges are wrong. Unfortunately, Mrs X did not provide this information, apart from saying the Council did not take DRE into account, including day care charges.
50. The Council told me Mrs X got in touch in January 2021 about Mr Y’s dementia diagnosis. The Council then worked with the District Council to move Mr Y into extra care housing. Mrs X then applied for LPA.
51. The Council said it completed a light touch financial assessment in April 2021, and sent the outcome to Mrs X. Mrs X disputed information about pension credit. The Council then completed a full financial assessment with Mrs X by telephone in July 2021.
52. The Council said it continued to send invoices and financial correspondence to Mrs X until August 2024. It also spoke to her to complete several financial assessments over this period, and about non-payment of invoices. Mrs X did not appeal any of the financial assessments, so the Council considers it charged Mr Y correctly.
53. The Council told me Mrs X did question whether Mr Y could afford to pay his assessed contribution. She gave details of his income and expenditure in January 2022 along with what she considered were expenses arising from Mr Y’s dementia. The Council said these expenses were unsubstantiated. It told Mrs X what expenses the Council could consider as DRE. Mrs X did not provide further evidence. After several conversations with Mrs X, the Council decided to close the DRE assessment and not include any DRE on 30 May 2022.
54. The Council said Mrs X got in touch in November 2022 about Mr X needing to be more occupied and challenged during the day. The Council told Mrs X she could consider a day centre, which was chargeable, but it considered Mr Y’s extra care housing provided activities, and Mrs X could speak to the manager about this.
55. Mrs X raised another query about DRE in July 2023 and gave some evidence. However, the Council did not approve the claimed expenses as they did not meet the criteria for DRE or were unsubstantiated.
56. However, after a decline in Mr Y’s health in July 2023, Mrs X asked the Council to support him by increasing his attendance at the day centre. The Council agreed this in principle, but Mr Y had to move to emergency respite care in a care home on 19 July 2023 and did not have the chance to increase his attendance.
57. The Council said it completed a financial assessment when Mr Y went into emergency respite care on 19 July 2023. This was short term, but there was no end date as the length of the placement was uncertain. It re-assessed Mr Y in December after making him a permanent resident at the care home. It wrote to Mrs X explaining this and the adjustments were reflected in its invoice dated 27 December 2023.
58. The Council completed another reassessment in April 2024 as part of the outcome of Mrs X’s complaint raised on 30 November 2023. It decided to make an allowance for Mr Y’s rent while he was in permanent residential care to maintain the tenancy on his flat. It explained this in its complaint response dated 3 May 2024.
59. The Council said, unfortunately, the case worker did not contact Mrs X about DRE after the complaint response. A manager made several attempts to contact Mrs X after her email on 6 May 2024 to discuss her concerns, including about DRE, but with no success.
60. The Council said it reviewed Mr Y’s DRE as part of my investigation and, based on the evidence received, there is no indication Mr Y’s expenses were higher than the Council’s standard DRE of £17 per week. The Council therefore did not need to consider exercising discretion to allow for unreceipted expenses. Expenses such as pillows, bedding and blinds were deemed as one-off purchases and there was no indication Mr Y’s diagnosis meant those items needed regularly replacing. It said it did not assess Mr Y as needing leisure activities to meet his needs. Mrs X took Mr Y to a driving range, but the Council did not consider this was DRE, and Mrs X did not provide any details of costs, dates, or journeys for the Council to consider.
61. The Council apologised for not contacting Mrs X about DRE within two weeks of its complaint response. It also accepted it did not communicate the outcome of its DRE review to Mrs X when unsuccessful later attempts were made to contact her. It will provide Mrs X with this in writing for completeness and will remind staff to use all methods of communication when they cannot contact someone by telephone.
62. The Council said it assessed Mr Y as needing to contribute to the cost of his care from 21 March 2021 until 5 June 2024. In this time Mr Y only paid £200 towards the cost of his care, resulting in a large debt accruing.
63. The Council said Mrs X got in touch in September 2023 after Mr Y passed away, advising that he had no funds to clear the debt. The Council asked for evidence of this, but the information Mrs X supplied was not satisfactory. The Council asked for more information, but Mrs X said she cannot provide it or explain why there are insufficient funds available.

Analysis

64. The Council told Mrs X at the outset that it would not pay for Mr Y to attend a day care centre, as his supported living accommodation ran activities Mr Y could access.
65. I found Mrs X did not supply the Council with any evidence to suggest Mr Y needed to attend a day care centre (rather than activities available at supported living) because of his disability or health condition.
66. Mrs X also did not provide the Council with the evidence it requested for the items of DRE she claimed.
67. The Council’s policy is to set a standard rate for DRE of £17, unless there is evidence someone has higher expenses linked to their disability or health condition. I did not see evidence to suggest Mr Y’s DRE exceeded the standard rate.
68. I appreciate Mr Y had large expenses, including on food, the day care centre, telephone, and internet. However, Mrs X did not give the Council evidence Mr Y needed to spend more on these items because of his disability or health condition. I found no fault in the Council’s consideration of Mr Y’s DRE.
69. The Council’s financial assessments allowed Mr Y the standard rate of £17 for DRE. It also allowed the standard MIG set by Government, to ensure Mr Y kept some of his income. While I appreciate Mrs X considered the care and support charges were unaffordable, I have not seen evidence of fault in the Council’s financial assessments.
70. The Council periodically reassessed Mr Y’s finances and confirmed the result in writing. It also produced regular invoices for Mr Y’s care and support charges. I saw evidence the Council involved Mrs X in the process and kept her updated, including discussing outstanding care and support charges with her.
71. When the Council considered Mrs X’s complaint it said it would contact her to reassess Mr Y’s DRE. The Council accepts it did not do this. It did later complete a review of Mr Y’s DRE, but it failed to tell Mrs X the outcome. That was fault. However, there was no change to Mr Y’s care and support charges, and the Council confirmed it will tell Mrs X. This will have caused Mrs X a degree of frustration and uncertainty, because the Council did not appear to have done what it committed to do in its complaint response.
72. As the Council reminded staff to use all methods of communication when they cannot contact someone by telephone, I did not need to make any service improvement recommendations.

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Agreed Action

73. Within four weeks of my final decision, the Council will apologise to Mrs X for failing to contact her to reassess Mr Y’s DRE following its complaint response, and for failing to tell her the outcome of its review.
74. The Council will provide us with evidence it has complied with the above actions.

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Final Decision

75. There was no fault in the Council’s consideration of Mr Y’s Disability Related Expenditure, and no fault in its financial assessments. I also found it kept Mrs X updated about Mr Y’s care charges. The Council was at fault for not contacting Mrs X to reassess Mr Y’s Disability Related Expenditure and for not telling her the outcome of its review. It agreed to apologise for the frustration and uncertainty this caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman