Summary: There is no evidence of fault in the way the Council has reached its decision about the disability related expenditure allowance for Mr X or explained the situation to Mr and Mrs A.

The complaint

1. Mr and Mrs A (as I shall call them) complain about the disability-related expenditure allowed for their disabled son Mr X. In particular they complain that the Council no longer takes into account expenses such as private dentistry which it previously allowed and uses inappropriate national guidance to reach an average figure for heating costs. They also complain that Mr X is still charged for use of his day centre on weeks when it is closed because of Bank Holidays.

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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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 considered the information provided by the Council and by Mr and Mrs A. I spoke to Mr and Mrs A. Both parties had an opportunity to comment on a draft of this statement before I reached a final decision.

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What I found

Relevant law and guidance

5. 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)
6. 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.
7. The Council reviewed its Disability-related Expenditure policy in November 2021. In line with the Care and Statutory guidance the new policy takes into account “reasonable additional costs directly related to a person's disability”.
8. Community dental services provide dental care for people who are unable to access care from a general dental practitioner due to specific needs. Treatment is usually provided on a referral basis from a general dental practitioner.

What happened

9. Mr X, a disabled adult, lives with his parents in their two bedroomed bungalow. He has epilepsy and needle-phobia. He attends a day centre some days a week.
10. In early 2024 the Council carried out a financial assessment review and identified that some items which had been previously regarded as disability-related expenses, particularly his private dental charges and private medical insurance, would no longer be regarded as such. Mr and Mrs A provided details of some additional items which they considered should be included, including his mobile phone costs and chiropody charges, and the Council agreed to take those into account. The Council wrote to Mr X explaining that his maximum assessed weekly charge would now be £12.96.
11. Mr and Mrs A appealed against the charge and asked for other disability related expenses to be taken into account. They said Mr X cannot use an NHS dentist because of his needle phobia: they said previous dentists had refused to treat Mr X because of the risks related to his epilepsy. Mr and Mrs A also said the Council previously allowed private medical insurance costs. They say they need to be able to access medical care quickly for Mr X.
12. In addition Mr and Mrs A were concerned about the figures used by the Council to calculate heating and energy charges. They said it was not reasonable for the Council to use average figures provided by the NAFAO (National Association of Financial Assessment Officers) as this was not legally binding.
13. Finally Mr and Mrs A disputed the way in which the Council charged Mr X (via his weekly assessed contribution) for his attendance at day centres even on Bank Holidays when it was closed.
14. The Council’s Charging Technical Officer wrote to Mr and Mrs A on 1 May with the final response. She said dentistry was a cost incurred by everyone and therefore was not an expense related only to Mr X’s disability. Medical needs could be met through the NHS and therefore it was a choice to have private medical insurance.
15. The Technical Officer said in common with other councils they took advice from the NAFAO on national average figures for energy usage.
16. The Technical Officer asked Mr and Mrs A to provide evidence of extra costs if they considered their laundry expenditure excessive due to Mr X’s condition.
17. Finally she explained that Mr X’s contribution remained the same however many days he attended his day centre and was based on his financial assessment, not frequency of attendance.
18. Mr and Mrs A complained to the Ombudsman. They said items which had previously been taken into account (dentistry, medical insurance) were now not. They said he was being charged to attend his day centre when it was closed on Bank Holidays and said this affected other service users as well. They said they thought the NAFAO advice was biased and the Council should not rely on it.

Analysis

19. The statutory guidance is clear that disability-related allowances should be precisely that: “additional costs directly related to a person's disability”. It should be possible for Mr X to be referred to the community dental services rather than pay for dentistry.
20. The Council points out that any treatment that a medical professional deems necessary should be met and funded by the NHS. It is a choice to pay for private health insurance therefore and not one which the Council can say is an additional cost directly related to Mr X’s disability.
21. The Council has explained several times that Mr X’s contribution does not alter however often he attends a day centre as this is the maximum contribution he was assessed as having to pay. The Council also suggested he might discuss alternative days with his social work team for those weeks when his day falls on a Bank Holiday.
22. The NAFAO guidance is widely used. I am satisfied the Council has explained its application of the guidance to Mr and Mrs A.
23. I am satisfied the Council has considered properly the evidence given to it about Mr X’s disability related expenses.

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Final decision

24. I have completed this investigation. There is no evidence of fault in the way the Council reached its decision.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman