Summary: Mrs X complained about the Council’s financial assessment to decide if Mr Z should contribute towards the cost of his care. We found fault as the Council did not provide sufficient evidence it properly considered its discretion and Mr Z’s particular circumstances. The Council agreed to make a fresh decision and apologise to Mrs X.

The complaint

1. The complainant, Mrs X, complains about the Council’s financial assessment to establish whether Mr Z should contribute towards the cost of his non-residential and respite care services. In particular, Mrs X says the Council has not properly considered the rent Mr Z pays or some of his other expenses. Mrs X says this has caused her distress and frustration in trying to resolve the issue.

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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. 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)
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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How I considered this complaint

5. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

Charging and financial assessments

7. 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)
8. 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.
9. 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)

Disability related expenditure

10. 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 policy

11. The Council’s Adult Social Care Policy: Financial Policy Reference (2019) says:

3.18 Disability Related Expenditure (DRE) Allowances: these are discretionary allowances for people on disability benefits and receiving non-residential care from the council. It provides for disability-related costs incurred by the person to be offset against the person’s assessed income.

3.19 The council will allocate all such clients a pre-set banded DRE allowance. The value of the band varies according to the level of DWP disability benefit the person receives, rather than being based on the person’s specific disability-related costs. This helps the person avoid the intrusive questions on medical and other factors required to set a personalised DRE allowance. However, everyone is made aware that they can appeal against this automatic allocation and ask for an individual allowance based on their own specific needs and costs if they provide suitable evidence.

12. The Council’s DRE guideline allowances for the period relevant to this complaint were:
• £10.00 per week for lowest DWP benefit rate Disability Living Allowance (DLA) Care Component
• £15.00 per week for medium rate DLA Care Component, Low rate Attendance Allowance (AA) or Standard rate Personal Independence Payment (PIP)
• £25.00 for the highest DWP rate DLA Care Component, AA or PIP

Principles of Good Administrative Practice

13. The LGSCO’s Principles of Good Administrative Practice says we expect councils to act fairly and proportionately and to be open and accountable. This includes:
• explaining clearly the rationale for decisions and recording them;
• stating the criteria for decision-making and giving reasons; and
• keeping proper and appropriate records.

What happened

14. The following is a summary of key events. It does not include everything that happened.
15. Mr Z is an adult with a learning disability. He lives with Mrs X’s sister. Mr Z is not related to Mrs X or her sister. Mrs X helps with Mr Z’s finances and paperwork.
16. Mrs X’s sister confirmed towards the end of January 2024 that Mr Z paid £600 monthly towards rent, bills, council tax and the running of their car.
17. The Council carried out a financial assessment for Mr Z and wrote to him care of Mrs X in March 2024 to confirm the outcome. As a result of the assessment, the Council determined Mr Z should pay £137.90 weekly towards the cost of his care and support.
18. The Council sent an invoice for £1,654.80 at the end of March.
19. Mrs X did not agree with the result of the assessment. Mrs X complained to the Council as she did not consider it had taken into account the rent and other housing related bills that Mr Z paid. Mrs X also highlighted some disability related expenditure (DRE) which she did not consider the Council had taken into account.
20. The Council sought further information from Mrs X in May.
21. The Council completed a support plan discussion on 30 May 2024 with Mr Z and Mrs X. The resulting document dated 4 June recorded Mrs X and her sister as being Mr Z’s stepdaughters. Miss X subsequently advised that she and her sister were not related to Mr Z.
22. The Council remained of the view the £600 would still not be included as a property related expense (PRE). This was because Mr Z was not eligible for Housing Benefit and did not have a tenancy in place and so it did not consider he paid rent but rather the payment was for board. The Council accepted Mr Z paid towards bills including board but that this would be covered by the minimum income guarantee (MIG).
23. The Council provided a response to Mrs X’s complaint in early August. The Council confirmed it had completed a review of the financial assessment and it was correct in accordance with the Care Act 2014 and the Council’s Charging Policy. The Council also confirmed the DREs it had allowed which fell within the banded allowance amount of £25 which had already been applied and so did not affect the outcome of the assessment. The Council also explained why it had not allowed other DREs highlighted by Mrs X. The Council did agree to consider further the inclusion of Mr Z’s PA mileage on receipt of evidence of the amounts paid.
24. The Council also explained to Mrs X that as the tenancy was not in Mr Z’s name, he was not considered liable for rent. The Council outlined that it had previously reviewed requests for rent within the financial assessment for people who lived with family members and this had been considered by members of the Adult Social Care Policy and Guidance for Finance and Placement issues panel. The conclusion of the Panel was that the Council would follow the same guidelines as Housing Benefit in relation to whether any monies could be considered as rent. Housing Benefit regulations state that where the rent liability is to a person who lives in the same household and is a close relative, there is no eligibility to Housing Benefit. The Council noted that as Housing Benefit would not be payable in Mr Z’s circumstances, it would not consider any monies to be paid as rent, and so would not include it as a PRE. The Council would consider the monies paid as board and to be covered as part of Mr Z’s MIG.
25. The relevant Panel record for Mr Z says “Requested rent to be taken into account as PRE. No liability for rent so this has not been included. Previous panel decision was that for those who weren’t eligible for housing benefit would not get PRE where board was paid. E.g. son/daughter.” Mrs X’s information that Mr Z was not related to her family and the circumstances surrounding her sister taking him into her home were set out as well as the reason why the property could not be sublet and that Mr Z did not have capacity to have a tenancy. The Council noted that there was no evidence of previous payment of housing benefit (I have seen no evidence this was requested from Mrs X) and that the family could apply for a Limited Power of Attorney so Mr Z could be added to the tenancy. The decision is recorded as rent not being allowable as a PRE.
26. Mrs X complained to the Council in September about a letter she had received seeking the outstanding balance. The Council provided a further response setting out the position in October.
27. The Council had offered a payment plan to Mrs X and subsequently agreed for the debt to be repaid at £10 a month.
28. In responding to the Ombudsman, the Council provided details of a previous Panel decision in 2022 where the decision was to follow housing benefit rules. I note this related to a request to include rent paid between family members which is not the case here.
29. The Council acknowledges there was not a family relationship and so this would not impact Housing Benefit. However, Mrs X also advised the property could not be sublet and so the Council considered Mr Z was not liable for rent. The Council says it follows the same guidelines as housing benefit in relation to whether any monies can be considered as rent. Therefore, the Council will not consider any monies to be paid as rent and so will not include it as a PRE. The Council says it would include any payments towards board within the MIG.

Analysis

30. The Ombudsman is not an appeal body. It is not our role to carry out financial assessments, decide what contribution someone should make to their care costs, or decide whether certain expenses should be classed as DRE. Our role is to investigate the process a council followed, to assess whether it made its decision properly. We look for evidence of fault causing injustice to the complainant. We cannot question the professional judgment of council decision makers where the process was not affected by fault.
31. Mrs X raised a number of points regarding DRE. The Council reviewed its assessment and considered these. It accepted some expenses, but it did not make a difference to the outcome. I have not seen evidence of fault here. The Council considered this in accordance with the statutory guidance and its policy.
32. I will address Mr Z’s housing costs below.
33. Housing benefit regulations state that where the rent liability is to a person who lives in the same household and is a close relative, there is no eligibility to housing benefit. This is not the case here.
34. The Council does not accept Mr Z has any liability for housing costs/rent despite being informed that he is not related to Mrs X’s sister in whose property he lives. It is not clear to me how the Council has reached this decision.
35. The Care and Support statutory guidance makes clear that the purpose of the MIG is to promote independence and social inclusion and ensure that a person has sufficient funds to meet basic needs such as purchasing food, utility costs or insurance. This must be after any housing costs such as rent and council tax net of any benefits provided to support these costs – and after any disability related expenditure.
36. Councils have discretion to decide what are legitimate housing costs to be allowed in a financial assessment.
37. The relevant Panel record does not set out how the Panel considered its discretion or Mr Z’s particular circumstances. There is also no record of a discussion about what the actual housing costs highlighted by Mrs X were and whether they represented a reasonable and legitimate expense Mr Z would be expected to meet. This is fault.

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Action

38. The aim of our remedies is to try and put the person back into the position they would have been in ‘but for’ the fault. The Council has agreed, within one month of my final decision to:
1. Reconsider the decision not to include Mr Z’s specific housing costs as property-related expenditure taking account of the fault identified above and provide Mrs X with a written record of the fresh decision. If this alters Mr Z’s financial assessment, the Council should set this out as well.
2. Apologise to Mrs X for the avoidable uncertainty.
39. The Council should provide us with evidence it has complied with the above actions.

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Decision

40. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman