Summary: The Council was at fault as it did not respond to Mr X’s official complaint and has not properly assessed some of the Disability Related Expenses incurred by his mother when calculating her contribution to care costs. Reassessing the Disability Related Expenses and making a payment for the distress caused by the delay in the complaints process remedies the injustice.

The complaint

1. The complainant, Mr X, complains the Council has not properly assessed disability related expenses when calculating the financial contribution towards care costs for his mother, Mrs M. He believes the invoices are too high and is concerned the Council will take enforcement action to recover the extra charges.
2. Mr X also complains the Council did not consider an official complaint in accordance with its policy.

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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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How I considered this complaint

5. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
6. Mr 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

Law and guidance

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. Councils have no power to assess couples according to their joint financial resources. A council must treat each person individually. 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)
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.

Key facts

11. Mrs M receives care at home. Mr X complains about the Council’s assessment of the DRE for Mrs M during the financial assessment.
12. Mr X explained that previously they have had face-to-face assessments but the 2024 assessment was via a questionnaire and has resulted in care costs increasing as the DRE were reduced.

Building work to replace the conservatory roof and removal of asbestos roof.

13. The Council has said ‘this was not mentioned during the financial assessment but would be disregarded as it is property maintenance and doesn’t directly relate to Mrs M’s care needs’.
14. I find no fault on this point. The building work is not an expense related to Mrs M’s disability so I cannot say the Council should include it as a DRE.

Building work to install a wet room.

15. The Council has said ‘Mr X did not give any details of this expenditure for us to consider during the financial assessment. We have now looked into this further and established Mrs M paid a contribution of £2293 towards this wet room (the rest being covered by Disabled Facility Grant). After consultation, we would apply this expenditure over 10 years hence make allowance of £4.41 per week in regarding DRE. This could be applied to a revised financial assessment’.
16. I consider that including the cost of the wet room in the revised financial assessment remedies the injustice to Mrs M.

Building work to install CCTV.

17. The Council has said ‘this wasn’t mentioned during the financial assessment. To consider as DRE we would need to establish the role of the CCTV and whether it is part of the care and support rather than just for general security’.
18. I consider that considering the cost of the CCTV in the revised financial assessment, once the further information is provided by Mr X, remedies the injustice to Mrs M.

Energy costs

19. Mr X’s mother lives in a small Bungalow, with a hybrid hospital bed and a ceiling mounted electric hoist using electricity. Mr X says as his mother is immobile and so the temperature of the property has to be maintained at a certain level. Mr X says that Section 44 of the Care and Support Act says that DRE should include ‘any heating costs, or metered costs of water, above the average levels for the area and housing type, occasioned by age, medical condition or disability’. Mr X has said that the Council has used a national average for heating costs rather than the average for a smaller property that Mrs M lives in and has not taken into account her individual circumstances.
20. The Council has said ‘to determine the allowance of heating costs for DRE we use nationally established averages. Mrs M lives in a semi-detached bungalow so the average for a single person in a semi-detached property is £2255. The invoice provided states the estimated annual cost of the gas for Mrs M is £1252 so well below the average. Regarding electricity, we believe the bed and hoist would use approximately 50 watts of power as they are designed for low power use. If Mr X provided evidence of average electricity bills it is likely a weekly allowance can be calculated as DRE but it is likely to relatively small amount’.
21. I find no fault on this point. The amount of gas used by Mrs M is well below the average cost, even the cost for a single person in a flat which is the lowest cost. So, so I cannot say there is fault in the Council’s decision not to include it as a DRE. The Council has offered to reconsider the amount of electricity to assess whether this could be included as a DRE which remedies any injustice on this point.

Complaint

22. Mr X has complained the Council did not consider his official complaint in accordance with its policy.
23. The Council has said it received the complaint from Mr X on 5 August and it was assessed to be dealt with as a service request, outside the complaints procedure. After Mr X chased twice for a response, the Council agreed it would be responded to through the complaints procedure. The Council did not respond, which it said was due to an oversight, until contacted by the Ombudsman in January 2025. The Council said ‘this has been raised with the Commissioning Operations Lead, who has explained that due to an oversight, the complaint has not been responded to and this is accepted by the service as a failing and a point of learning regarding accessing the complaints system which is now being addressed as we recognise the impact and the frustration this has caused the complainant’.
24. I find fault on this point. The Council did not consider the complaint in accordance with its complaints procedure. This led to delays and frustration for Mr X.

Conclusion

25. Mr X has been caused injustice from the fault by the Council. The delays considering his complaint have meant that the points he has raised have not been considered and he has not been asked to submit evidence to support them. The Council has also considered enforcement action while Mr X was waiting for a reply to his complaint.
26. The reassessment of the DRE will put Mrs M back in the situation she should have been in from August 2024. In addition to this, I consider the Council should make a payment towards Mr X’s distress and uncertainty due to the delays in the complaints process. I have not made a service recommendation as the Council has already identified and learnt from the fault.

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Action

27. Within two months of the date of the decision the Council should:
• Reassess the DRE and backdate any changes to 19 August 2024. This reassessment should include £4.42 per week for the wet room. It should also reassess the DRE for the electricity and CCTV charges once Mr X sends in the evidence.
• Pay Mr X £250 to recognise the distress and frustration caused by failing to consider his official complaint correctly.
28. The Council should provide us with evidence it has complied with the above actions.

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Decision

29. I have completed my investigation and this complaint is upheld. 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