Summary: Mr X complained the Council incorrectly assessed his mother’s disability related expenditure when reviewing her financial assessment linked to care costs. We found fault because the Council applied a blanket approach to the disability related costs it would write off which it should not have done. To remedy the injustice caused, the Council has agreed to apologise to Mr X and his mother, review her financial assessment, update its charging policy and guidance and share this with relevant staff.

The complaint

1. Mr X complains the Council’s assessment of his mother, Mrs Y’s, disability related expenditure (DRE) was flawed. He says the Council has not fully considered the expenditure put forward and has placed a financial limit on how much can be claimed when it should not have done.
2. Mr X says this has caused Mrs Y considerable distress and frustration and has affected her finances.

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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 may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), 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(1), as amended)

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What I have and have not investigated

6. My investigation begins when the Council sent Mrs Y its financial assessment letter on 24 June 2024.
7. My investigation ends when Mr X brought the complaint to us in January 2025.

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How I considered this complaint

8. I have considered all the information Mr X and Mrs Y provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Mr X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Relevant law and guidance

Charging for non-residential social care services: the power to charge

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)
11. 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 treat each person individually. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.

Disability related expenditure and minimum income guarantee

12. 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.
13. 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 DRE to meet any needs it is not meeting. The Care and Support Statutory Guidance (the CSSG) 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, if relevant.
14. 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)
15. Complaints about the level of charge levied by a local authority are subject to the usual care and support complaints procedure as set out in The Local Authority Social Services and NHS Complaints (England) Regulations 2009.

The Council’s charging policy

16. The Council’s policy related to DRE says that:
• where disability related benefits are taken into account, it will assess and allow the person to keep enough benefit to pay for necessary DRE to meet any needs which are not being met by the Council;
• it will make an appropriate allowance when assessing DRE where supporting evidence is supplied in line the CSSG, Annex B: Treatment of income;
• DRE will be allowed up to a maximum that is equivalent to the individual’s disability benefit payment; and
• the Council will ensure that a person’s income is not reduced under the MIG after charges have been deducted.

What happened

17. This is a summary of the key events. It is not a complete chronology of everything that happened.
18. Mrs Y has had a care and support plan for several years which shows she has eligible care needs. Mrs Y is being represented by her son, Mr X.
19. The Council carried out a light-touch financial assessment (FA) of Mrs Y’s circumstances on 24 June 2024. It assessed she needed to contribute £179.50 per week towards the cost of her care. The letter said her contribution started on 22 June 2024 and explained she would receive £407.66 per week as a direct payment from the Council.
20. The Council communicated with Mr X and Mrs Y throughout July 2024. The family queried why her contribution had increased and explained there was some DRE it would like to be considered. The Council explained the financial assessment process, annual increases to contributions and that it had reviewed her case as it had a new charging policy in place.
21. On 1 August 2024, Mr X sent an email detailing the costs the family wanted the Council to consider in its DRE assessment. The Council replied to advise it would need evidence of costs and outlay.
22. On 18 September 2024, Mr X and Mrs Y sent the Council evidence of some DRE costs they had submitted. The Council replied to explain the amounts it had decided were relevant DRE for various items. It asked for additional evidence for other items being claimed as DRE. It explained it needed evidence of actual costs rather than anticipated costs or those based on average costs the family had researched.
23. The Council sent an amended FA on 26 September 2024 and attached a letter explaining the DRE amount it had included. Mrs Y’s weekly contribution was now assessed as £70.95 with the Council’s new direct payment amount being £516.21 per week. Her contribution was due to start on 2 November 2024.
24. The family and the Council communicated further that day. The Council explained it had assessed Mrs Y’s DRE amount as £117.50 per week. It explained the maximum amount of DRE it allowed on any case would be capped at the individual person’s disability benefit amount received for care. This was £108.55 per week in Mrs Y’s case. The Council said this meant there was no further scope for any additional DRE to be considered in her FA.
25. Mrs Y logged a complaint with the Council on 11 October 2024. She said she could not afford what she was being asked to contribute and listed reasons she felt her circumstances were exceptional.
26. The Council sent its first and final complaint response to Mrs Y on 25 October 2024. The Council repeated that the maximum DRE it could write off was, as per its charging policy, capped at the amount of disability benefits she received. It repeated that it could not consider further expenses she put forward as these would be outside the remit of its charging policy. It confirmed she should transfer £70.95 per week into her direct payment account towards the cost of her care and support needs. The response signposted Mrs Y to the Ombudsman.
27. The Council and the family continued to communicate in November 2024. The Council provided a breakdown of what it agreed was DRE from the documentation sent in. It set out what amounts these had been accepted at in her DRE claim.
28. The family brought its complaint to us early in 2025. Evidence on file shows whilst our investigation was underway, Mrs Y intended to pay the lower amount of her previous contribution in place before she was reassessed in June 2024.

Analysis

29. The Ombudsman is not an appeal body. We do not decide what a council should and should not consider as DRE, this is a decision for the Council to make. A disagreement of what is and is not DRE between the parties is not evidence of fault. Rather, we consider whether there was any fault in how the Council acted when considering any relevant legislation, guidance or local policy in relation to the matters concerned.
30. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.
31. In my enquiries to the Council, I asked it to consider whether it had fettered its discretion by setting a limit for DRE as per its policy. In response, the Council said the decision was based on the logic that the disability benefit a person receives is an income paid to support needs arising from a long-term health condition or disability.
32. I have considered the relevant legislation and the CSSG. I am satisfied there is no provision for the Council to adopt a blanket approach to cap DRE at the amount of a person’s disability benefit. As per paragraph 13, the CSSG sets out examples of DRE and says any reasonable additional costs directly related to a person's disability should be included. In Mrs Y’s case, the Council did not include all costs it had evidence for and which it had considered reasonable as DRE. It stopped short of this because it did not write off any amount over the level of her disability benefit even though it had assessed her DRE as higher than this.
33. I am satisfied, that in the circumstances of this complaint, the Council fettered its discretion which is fault. This caused distress, frustration and uncertainty to Mr X and Mrs Y. I have made a recommendation below to remedy this injustice.
34. Also as part of my enquiries, I asked the Council if it had considered exercising any discretion to go above its policy limit due to Mrs Y’s circumstances which the family said were exceptional. The Council said on reviewing the case, officers should have asked for approval to apply an additional allowance.
35. To remedy this, the Council said it would:
• review Mrs Y’s FA to include the allowance of £122.89 per week which is what it had assessed her DRE at in November 2024 (not £117.50 quoted above which was incorrect);
• review this from the start of the assessment period from 2 November onwards; and
• re-request evidence for costs submitted by the family but where no evidence was provided at the time.
36. Not considering whether it should exercise discretion was fault. It caused Mr X and Mrs Y avoidable distress and uncertainty. Whilst I acknowledge the Council’s proposed actions, I am not satisfied they fully remedy the injustice caused and have made a recommendation below.

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Agreed action

37. To remedy the injustice caused by the faults I have identified, the Council has agreed it will take the following action within four weeks of the date of my final decision:
• apologise to Mr X and Mrs Y for the identified injustice; and
• begin its review of Mrs Y’s FA and backdate any relevant evidenced DRE from 24 June 2024 when it first completed its light touch assessment. The review should not cap the DRE as before.
38. Within three months of the date of my final decision, the Council has agreed to review and amend its charging policy and any associated DRE documentation or guidance issued to officers. It should do this to reflect there should be no DRE limit equivalent to the amount of disability related benefit a person receives and to ensure it does not fetter its discretion. The Council should share the updated policy and information with relevant officers and managers.
39. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

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Investigator's decision on behalf of the Ombudsman