Summary: Mr X complained the Council has failed to properly complete his financial assessments or correctly consider his disability related expenses, which has resulted in unaffordable care charges and a substantial debt. We found the Council at fault for not identifying and assisting Mr X in managing his escalating debt, and for the delays in the complaint process. These faults have caused Mr X distress and frustration. The Council will apologise, make a payment and take action to improve communication between the finance team and adult social care team, and produce guidance for staff about managing debt for vulnerable adults.

The complaint

1. Mr X complained the Council has failed to properly complete his financial assessments and give full consideration to his disability related expenses (DRE), which has resulted in unaffordable care charges and a substantial debt.
2. Mr X complained the Council’s financial assessment policy does not comply with the law or statutory guidance and is discriminatory to those with mental health conditions.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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

6. Mr X complains about errors in the way the Council has calculated his financial assessments since at least 2019 but I have not investigated the full period of his concerns. Mr X initially contacted us in November 2024 so I have investigated events since November 2023. It was open to Mr X to raise his concerns about the financial assessments between 2019 and 2022 much sooner, and there is no good reason to exercise discretion to consider them now

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How I considered this complaint

7. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
8. 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

Financial assessments and Disability Related Expenses

9. 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)
10. 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.
11. People receiving care and support other than in a care home need to keep a certain level of income to cover their living costs. 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. (Care Act 2014)
12. 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 what should be considered a Disability Related Expense (DRE) under Annex C. The list includes:
• any heating costs, or metered costs of water, above the average levels for the area and housing type;
• reasonable costs of basic gardening maintenance, cleaning, or domestic help, if necessitated by the individual's disability and not met be social services;
• purchase, maintenance and repair of disability related equipment need to enter or remain in work which include IT costs, where necessitated by the disability;
• personal assistance costs, including any household or other necessary costs arising for the person; and
• additional costs of special dietary needs due to illness or disability.
13. The Guidance confirms the list "… is not intended to be exhaustive and any reasonable additional costs directly related to a person's disability should be included."
14. It also says that a person's care plan "… may be a good starting point for considering what is necessary disability-related expense. However, flexibility is needed. What is disability-related expenditure should not be limited to what is necessary for care and support."
15. The Council’s charging and financial assessment for adult care and support policy says its assessment of DRE is based on the good practices guidelines developed by the National Association of Financial Assessment Officer (NAFAO). Appendix D of the Council’s policy sets out a number of DRE items and the amounts the Council’s will allow for each.
16. It will only take account of DRE if it is identified as part of a person’s support plan. Where a person does not have supporting evidence the Council allows up to £30 per week to be claimed. If the person can provide supporting evidence the Council will allow the actual amounts in line with its policy.
17. Where DRE exceeds £45 per week the Council refers the claim to a panel of officers to consider. A panel will also consider DRE claims of less than £45 per week where the items claimed are not evidenced as a need in the support plan or are not on the list of items set out in its policy.

What happened here

18. This is a summary of events outlining key facts and it does not cover everything that has happened in this case.
19. The Council uses Company 1 to provides mental health and associated services for the Council. Mr X has had a package of care for several years. His care needs assessments and support plans were completed by Company 1. The Council has also completed financial assessments each year to calculate Mr X’s contribution towards the cost of his care.
20. Mr X does not agree with the calculations and has never paid a contribution towards his care charges. He complains that over the years the Council has tried to prevent him from claiming his valid DRE entitlement. As a result he has accrued a large debt. In 2019 the Council calculated Mr X’s contribution at £70.94 per week. This increased each year and in 2024 the Council told Mr X his weekly contribution from April 2023 was £149.37, this then increased to £159.77 from April 2024.
21. The Council calculated Mr X’s contribution each year based on information it already held, as Mr X did not return any financial assessment forms or details of his DRE.
22. When Mr X questioned the increased charge in April 2024 the Council told him it must regularly reassess a person’s ability to meet the cost of any charges. And that in assessing this it must take into account their income. The Council said it had only just been notified Mr X’s benefit entitlement had increased on 10 April 2023 so the increased charge would apply from that date.
23. In addition the Council confirmed that in calculating Mr X’s contribution it had used his MIG of £171.75 per week and disregarded the PIP mobility component.
24. Mr X disputed the Council’s calculations and made a formal complaint. He questioned whether the Council felt it was obliged to adhere to the statutory care act guidance. The Council confirmed it was obliged and did adhere to the statutory guidance.
25. Mr X asserted the Council had breached the statutory rules in at least the previous four years. And had applied its own charging policy rather than the law and statutory guidance. Mr X also said he had not received any forms to complete in advance of the financial assessments since 2021. He had just received demands for increased payments. Mr X asked for a face to face meeting to resolve the matter.
26. The Council arranged a meeting for 28 June 2024, which Mr X attended with his carer. It then sent Mr X a summary of what was discussed at the meeting and sent out how the issues would be considered. The records note Mr X’s concerns included:
• There was no process in place to check whether a person’s mental health or other vulnerability may require further consideration before issuing demands for payment
• The Council had not offered Mr X any support in relation to the accruing debt;
• Company 1 officers have no understanding of the DRE process despite being responsible for completing assessments;
• The Council uses guidance from the National Association of Financial Assessment Officers (NAFAO) which Mr X believes contravenes the Care Act 2014;
• The Council’s practices were judged discriminatory and unlawful by the High Court in the “Norfolk Judgement”
• The Council’s financial assessment form was not fit for purpose as it did not include an option to provide information about mental health concerns. And he had been advised by a solicitor not to complete it
27. Mr X amended the Council’s summary and suggested a further meeting was not necessary until the Council had investigated his concerns.
28. Council officers discussed Mr X’s concerns and then wrote to Mr X on 9 August 2024. They asked Mr X to clarify some of the issues he had raised before responding in full to his complaint. Mr X responded the following week.
29. As the Council had not responded to his complaint, Mr X contacted the Ombudsman in November 2024 to ask for assistance. We referred his complaint back to the Council to complete its complaint process. The Council responded to Mr X’s complaint on 21 January 2025. It upheld Mr X’s complaint that he was not notified of the increase in his contribution from April 2024 and partially upheld his concerns about the misunderstanding relating to a further meeting. The Council did not uphold Mr X’s other complaints.
30. The Council confirmed it used NAFAO as a guideline when considering whether an additional DRE allowance should be made for additional energy costs incurred due to a person’s disability. But emphasised each application was considered on its own merits, taking into account the individual’s circumstances. It advised Mr X if he wanted the Council to consider awarding him additional DRE in respect of his energy costs he would need to complete the financial assessment form and provide details of his energy consumption and costs.
31. In relation to its charging policy, the Council said it had no reason to believe it was not compatible with the Norfolk Judgement. It also noted the Norfolk Judgement had not set a precedent and that only the courts could determine if the Council’s policy was compatible with the law.
32. Although the financial assessment form did not list anything specific to claim for mental health related items or services, the Council noted Mr X could claim for these under “other” items or services. This does not however mean they would be agreed. The Council said there was no limit to claims for DRE in its policy. A panel of officers considered all claims above £45.
33. The Council noted it had revised the financial assessment form and sent Mr X a copy to complete and return if he wanted to claim DRE. Mr X had not returned the form to enable a review of his charges.
34. It had also investigated Mr X’s concerns about being asked to complete a DRE form before a compatible care plan was in place. The Council confirmed that DRE should be reflected in the support plan, but noted the DRE application is made separately after the support plan is finalised. The Council was liaising with Company 1 to request a review and an opportunity for Mr X to discuss whether he wanted to make a DRE application.
35. The Council said the finance assessment team could only take disregards into account upon receipt of a completed financial assessment form. It said there was no difference between contributions from people with physical health primary requirements and those with mental health primary requirements. The Council was satisfied there was no evidence this had prevented access to DRE for any individual.
36. In relation to Mr X’s requested outcomes the Council confirmed:
• it would arrange a care plan review;
• all social work teams are trained to identify DRE and to complete the care plans. The Council would work with Company 1 to ensure training was up to date.
• Mr X would need to complete financial assessment forms so that the Council could establish a correct level of charging, and then work with Mr X to look at prior years
• It would not cease the use of the panel
• Its charging policy is in line with the Care Act Statutory guidance and there is no evidence the DRE guidelines are not adhered to; and
• It was reviewing the staff training available and the financial assessment team had undertaken disability discrimination training.
37. Mr X remains dissatisfied and has asked the Ombudsman to investigate his concerns. He asserts the Council treats service users with physical conditions differently to those with mental health conditions. Mr X says the Council has not trained Company 1 staff on DRE and has told them not to indicate what expenses would be allowed within the care plans they produce.
38. In addition Mr X maintains the financial assessment form only allows for a selection of physical health equipment and no other DRE items are allowed. He says he has received invoices, reminders and final demands for payments with threats of bailiffs, but no support or assistance with the debt. This has had a detrimental impact on his health.
39. In response to my enquiries the Council says its charging policy refers to DRE and it has a practice guidance from applying the process. This practice guidance was written in 2022 and the Council says it was widely distributed across council and Company 1 staff. The Council says it has no formal training for this subject matter. And that staff and management are required to adhere to the charging policy and practice guidance for DRE in all aspects of their work.
40. As of 2 May 2025 Mr X owed £40,757.79 in outstanding care contributions. The Council’s records show it sent Mr X overdue notices several times in 2024. It has not provided evidence of any discussions with Mr X regarding paying the debt or explained how Mr X has been allowed to accrue such a substantial debt.
41. In response to the draft decision Mr X has reiterated that as Company 1 staff have not received any training in DRE practices, his support plans do not include any provision for DRE. As a result he has not been able to legitimately claim DRE.
42. Mr X also asserts the Council has not assessed whether he can afford the contribution or ensured he is not charged more than is reasonably practical for him to pay as required by the statutory guidance. He considers he is disadvantaged by the Council’s policy and that the Council has ignored its Public Sector Equality Duty.

Analysis

43. Mr X asserts the Council’s charging policy and its use of NAFAO guidance is contrary to the Care Act 2014 and statutory guidance. We note the NAFAO guidance is also used by many other local authorities when calculating contributions towards adult social care.
44. However, resolving questions of law and interpreting legislation falls under the jurisdiction of the courts, not the Ombudsman. As such the Ombudsman has no jurisdiction to determine whether the Council’s charging policy complies with the law or statutory guidance.
45. Mr X has not completed a financial assessment form during the period of this investigation. The Council completed his financial assessments using information about his benefits obtained from the Department of Work and Pension. Mr X complains the Council has not assessed the affordability of his contribution or whether he can pay it. To do this, Mr X would need to provide details of his income and expenditure, which he has not done.
46. Mr X also disputes the charges as they do not take account of his DRE. However there is no evidence Mr X has provided details of any DRE he would like to be considered.
47. Mr X asserts he was unable to claim DRE as due to a lack of training Company 1 assessors have not included DRE provision in his support plan. I am not persuaded this is the case. The Council’s charging policy does not require the support plan to specifically list DRE, but says

“The person’s support plan should identify disabilities or medical conditions that indicate that allowances should be given.” And

“DRE will only be taken into account if it is identified as part of a person’s support plan.”

48. This would suggest for example that where, as in Mr X’s case, the support plan identifies the need for additional washing cycles, DRE for the additional laundry costs may be appropriate. I do not consider Mr X’s support plan precluded him from claiming DRE
49. Mr X also asserts the Council’s financial assessment form only makes provision for equipment and services for those with physical conditions. Again, I am not persuaded this is the case. The form includes a number of the possible expenses also set out in the statutory guidance. It also includes the following section “Is there anything else you have purchased or have to pay for related to your disability or condition?”
50. It was open to Mr X to record his DRE in this section of the form. Alternatively he could record his DRE in the “Additional Information” section of the form, or on a separate sheet of paper.
51. There is no evidence of fault in the way the Council has calculated Mr X’s contribution towards his care charges based on the information it had available. Unless and until Mr X provides details of his finances and his DRE, the Council will be unable to consider them or amend his financial assessments.
52. The Council has amended its financial assessment forms to provide more space to include additional DRE. While this improved clarity is to be welcomed, I do not consider this to be evidence the previous form was flawed.
53. However, it is of concern that Mr X has accrued such a large debt, without the Council discussing this with him or offering any assistance. The Council’s charging policy says that if a person falls behind with payments its debt recovery procedures will normally be instigated. The initial stage of debt recovery involves discussing the debt with the person. The policy says the desired outcome is to prevent the debt escalating and for the person to enter into affordable repayments of the debt as well as pay ongoing costs.
54. There is no evidence the Council followed this procedure in this instance. The lack of communication between the finance team and the adult social care team has allowed the debt to build with no evidence of support being offered to Mr X. This is fault and has caused Mr X significant distress.
55. The delay in responding to Mr X’s complaint is also fault. The Council’s corporate complaint policy says it aims to complete stage 1 of the complaints procedure within 20 working days and that it will respond at stage 2 within 25 working days. The Council took significantly longer than its published timeframe to respond to Mr X’s complaint. This fault will have added to Mr X’s frustration and distress.

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Action

56. The Council has agreed to:
• Apologise to Mr X for the faults identified in this statements. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mr X £300 to recognise the significant distress and frustration caused by the faults identified in this statement.
57. The Council should take this action within one month of the final decision on this complaint.
58. Within two months of the final decision the Council has agreed to:
• consider how to improve communication between the finance team and adult social care team, with a view to preventing a similar situation arising again. The Council should produce guidance for staff about managing debt for vulnerable adults.
• If Mr X provides the necessary information/ completes the financial assessment form the Council will review its financial assessments to establish a correct level of charging for current and previous years. Then, having determined Mr X’s outstanding debt the Council will agree a manageable payment plan.
59. The Council should provide us with evidence it has complied with the above actions.

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Decision

60. 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