Summary: The Council was at fault when it failed to consider Mr X’s requests on behalf of his sister, Ms S, for disability related expenditure. This caused Ms S an injustice because there is uncertainty over whether those requests should have been granted. The Council has agreed to reconsider these requests and provide Mr X with a decision on each one together with its reasons.

The complaint

1. Mr X complains on behalf of his sister, Ms S, that the Council:
• refused to add a disability premium to her weekly ‘minimum income guarantee’ (MIG);
• refused to take disability related expenditure (DRE) into account when carrying out her financial assessment;
• took too long to arrange an occupational therapist (OT) to carry out a disability facilities grant (DFG) assessment for possible adaptations required to her bathroom.
2. He says Ms S has been financially disadvantaged because her financial contributions are too high, she has not received the DREs she is entitled to and she had to pay to have the bathroom adapted.
3. Mr X wants the Council to reassess Ms S’s financial contributions and DREs and consider repaying her for the costs of the bathroom adaptations.

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The Ombudsman’s role and powers

4. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
5. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. If we are satisfied with a council’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

7. I spoke to Mr X and considered his view of his complaint.
8. I made enquiries of the Council and considered the information it provided.
9. I wrote to Mr X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

Adult social care financial assessments

10. Councils can charge for care and support services they provide or arrange. (Care Act 2014, section 14)
11. A council must assess a person’s finances to decide what contribution the person should make to a personal budget for care.
12. People receiving council arranged care and support other than in a care home need to retain a certain level of income to cover their living costs. Under the Care Act 2014, charges must not reduce a person’s income below a certain amount. This is a weekly amount and is known as the ‘minimum income guarantee (MIG)’. In 2020/21, for people who were single and had reached pension age, the MIG was £189. These people could also ask that a disability addition of £40.35 a week was added to their MIG if they received disability benefits such as attendance allowance, disability living allowance (care component) or personal independence payment (daily living component). However, councils do not have to add this to the MIG.
13. The Care and Support Statutory Guidance says, (chapter 49): “The purpose of the minimum income guarantee is to promote independence and social inclusion and ensure that [people] have 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.”
14. The guidance also says (chapter 8.46), “The government considers that it is inconsistent with promoting independent living to assume, without further consideration, that all of a person’s income above the minimum income guarantee (MIG) is available to be taken in charges.”

Disability related expenditure

15. When a council takes disability-related benefits into account when calculating someone’s MIG, it must allow the person to keep enough benefit to pay for necessary disability related expenditure (DRE). Annex C of the Care and Support Statutory Guidance 2014 provides information about DRE and lists examples. The Guidance notes the list “is not intended to be exhaustive and any reasonable additional costs directly related to a person’s disability should be included”.
16. The list includes the following:
• payment for any community alarm system;
• purchase, maintenance, and repair of disability-related equipment, including equipment or transport needed to enter or remain in work; this may include IT costs, where necessitated by the disability;
• internet access for example for blind and partially sighted people;
• reasonable costs of basic garden maintenance, cleaning, or domestic help, if necessitated by the individual’s disability and not met by social services;
• costs of any specialist items needed to meet the person’s disability needs, for example:

(i) specialist washing powders or laundry;

(ii) additional costs of special dietary needs due to illness or disability;

(iii) additional costs of bedding, for example, because of incontinence; and

(iv) any heating costs above the average levels for the area and housing type.

17. The Council has published its own internal guidance on DREs. This states “If the item of expenditure you are assessing is a) expressly included in the list [in Annex C of the Statutory Guidance] and b) not included or cannot be included in the care and support plan and c) reasonable, then it should be allowed as DRE”.
18. The Council’s guidance contains a list of things it would not consider as amounting to DRE. The Council states the list should not be used as a substitute for the assessor’s judgement of the adult’s individual circumstances and requirements.
19. The list includes the following:
• gardening unless limited to the reasonable costs of basic garden maintenance and if necessitated by the individual’s disability – eg to ensure safe access; and
• private cleaner.

Disability Facility Grants

20. Local housing authorities have a duty under the Housing Grants, Construction and Regeneration Act 1996 to award a Disabled Facilities Grant (DFG) to help meet the cost of adapting a property to meet the specific needs of a disabled person. Councils will not pay for work started or completed before a DFG application is approved.
21. This investigation concerns the actions of Essex County Council which is not a local housing authority. The role of Essex Council in DFGs is to arrange and carry out occupational therapy (OT) assessments when it receives a referral from the local housing authority.

What happened

22. Mr X’s sister, Ms S has dementia. She is above the state pension age and lives in her own home. Previously Mr X and Ms S’s sister, Ms B, cared for Ms S.
23. In July 2020, Mr X contacted the Council’s Adult Social Care Services (ASC). Ms S’s dementia had rapidly deteriorated and Ms B could no longer cope with caring for her. Mr X said they were currently paying £25 an hour for home help for three hours a week but wanted direct payments from the Council so they could employ the home help for longer.
24. Later in July, the Council carried out Ms S’s financial assessment. This recorded the following:
• Ms S’s weekly income came to £361.07 in pensions and attendance allowance.
• she had weekly DRE outgoings for her alarm line and laundry which totalled £3.94.
• she was entitled to a weekly MIG of £189.
• this meant she could afford to contribute £168.13 a week towards the costs of her care (£361.07 - £3.94 - £189 = £168.13).
25. In August, the Council carried out a social care assessment. This recorded Ms S had eligible needs, including the need for help with dressing, showering, maintaining a habitable home, finances, preparing food and making drinks and nutrition. Ms S’s care plan included the fact Ms S wished to live at home for as long as possible and she had two dogs which give her “great comfort”.
26. The assessment recorded:
• Ms S required three calls a day of one hour each, to meet her needs (21 hours a week);
• Ms B said Ms S had less that the lower threshold for finances and so was not a self-funder; and
• the assessor explained that the Council would set up direct payments to pay for Ms S’s care but that the maximum hourly rate allowed by the Council was £20. This meant the family would have to top up the £5 hourly difference if they wanted to stay with the same care provider.
27. The Council completed a care plan. Support included the following:
• Ms B and the care workers would feed the dogs and clear up after them when required. Ms B would walk the dogs;
• Ms B and the care workers would change Ms S’s bedding and carry out any housework;
• Ms B or the care workers would cook Ms S’s meals at lunchtime and the care workers would make a snack for her at teatime; and
• the care workers would assist Ms S to shower.
28. In September 2020, Mr X contacted the Council and specified the following DREs should be taken into account in Ms S’s financial assessment:
• extra laundry including tumble drying and additional bedding and clothing because of Ms S’s incontinence;
• food bills as the family were now purchasing ready meals which were more expensive;
• security which included a door bell which warned the family if Ms S left the house, CCTV cameras and a key safe to allow access for the carers;
• extra heating and hot water;
• gardening because Ms S was unable to maintain her garden;
• cleaning because Ms S was no longer capable of carrying out housework;
• TV and internet access including a network TV package;
• buying and maintaining disability related equipment including grab rails and seat installed in the wet room;
• transport to the doctor’s surgery and hospital; and
• dog walking and other care.
29. Mr X also asked the Council to add the disability addition of £43.35 to Ms S’s MIG.
30. Mr X also said the family had installed a wetroom at a cost of £9,579 and wanted to apply for a grant to cover this cost.
31. The Council responded to Mr X:
• it requested Mr X provide details of how many extra loads of washing were carried out each week;
• it stated heating could come under DRE and if the costs were higher than average the Council would consider heating one room in Ms S’s house;
• it stated food bills, community alarms, security, clothing and TV/internet would not come under DRE;
• the carer workers would feed the dogs but Ms S would have to arrange and pay for a dog walker;
• gardening would only be considered as DRE if it was to keep pathways clear for access;
• any additional cleaning would have to be paid from Ms S’s attendance allowance;
• transport and additional bedding were not DRE but would come under the NHS incontinence service;
• disability related equipment did not come under DRE. Instead, Ms S would require an occupational therapy assessment to determine what equipment she needed; and
• the family was unable to apply for a grant for work which had already been carried out.
32. The Council later agreed to add extra loads of washing and the costs of the security system to Ms S’s DRE and to backdate them.
33. Mr X responded and said he attempted to apply for a disabled facility grant and was informed this would normally take at least three months but because of COVID-19, was likely to be delayed by a further three months. Mr X said Ms S could not wait that long which was why the family had installed the wetroom itself.
34. The Council sent Mr X a final response which reiterated the points it had already made. Mr X remained unhappy and complained to the Ombudsman.
35. In response to my enquiries, the Council said Mr X first raised the issue of the wetroom with it on 7 July. The Council’s notes record Mr X said he was trying to get funding for the wetroom “but it was a long process”. It has no record of telling him there would be a wait over more than six months because of COVID-19. Responsibility for the DFG process lay with Mr X’s local housing authority (a different council) which would request an Occupational Therapy (OT) assessment from the Council. The Council said assessments were carried out during the pandemic via video call and there were no delays.

My findings

36. We are not an appeal body, so cannot comment on judgements and decisions made by councils in the absence of fault in the process. Our role is to review the process by which decisions are made, and, where we find fault, to determine what injustice it caused.

Disability related expenditure

37. The Council’s policy on DRE is fundamentally sound. It states that although there is some expenditure which it is unlikely to consider as DRE, each case should be determined on a case by case basis.
38. Mr X stated Ms S needed help to manage her home and garden and to walk her dogs. He also requested DRE to cover other expenses such as additional food bills, an alarm, clothing and TV/internet. The Council dismissed these requests by stating they were not classed as DRE. The daily records for Ms S are brief and do not explain how officers reached their decisions. The records do not show whether, or how the Council considered It Ms S’s individual circumstances when deciding what was DRE. This is not person-centred and is contrary to the principles of the Care Act. This is fault.
39. Ms S’s care and support plan currently states housework is being carried out by the care workers and Ms B. Ms B is also walking the dogs. Therefore, these DRE requested by Mr X are currently being met. However, Ms S has been caused an injustice because it is uncertain whether Mr X’s requests for the other DRE have been considered appropriately by the Council.
40. During my investigation, the Council agreed to reassess Mr X’s outstanding requests for DRE and provide him with a decision on each together with a detailed explanation of how they were reached taking Ms S’s individual circumstances into consideration. If the situation should change in future and Ms B was unable to help with housework or dog walking, Mr X could ask the Council to reconsider these as DRE and come to a view based on Ms S’s individual circumstances. If Mr X is unhappy with the outcome he can complain again to the Ombudsman.

Disability premium

41. Ms S is of pensionable age and therefore does not get the disability premium, which is only applicable to those under pensionable age. In addition, where a person does receive a disability premium/component relating to care (as opposed to mobility), councils do not have to add this onto a person’s MIG. The Council was not at fault.

Disabled facility grants and the wetroom

42. Essex County Council’s role in the DFG process is to carry out an OT assessment following a referral from the local housing authority. Mr X arranged and paid for the work to the wetroom to be carried out himself and so an OT referral was not made. If Mr X wishes the local housing authority to reimburse him for the costs of the wetroom he should complaint to it in the first instance. There was no fault in the Council’s actions.

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Agreed actions

43. Within one month of the date of the final decision the Council has agreed to reconsider Mr X’s requests on behalf of Ms S for outstanding disability related expenditure. The Council has agreed to consider such requests having regard to Ms S’s circumstances and provide a decision and explanation on whether to approve each of these.
44. Within three months of the date of the final decision the Council has agreed to remind staff of the need to:
• consider the individual circumstances when a request for disability related expenditure is received; and
• clearly record the reasons for decisions to approve or refuse disability related expenditure.

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Final decision

45. There was fault leading to injustice. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman