Summary: Mrs D complained the Council failed to properly consider Miss X’s disability related expenditure for her care cost contributions since Autumn 2020 and caused delays in responding to her requests. The Council agreed some expenditure should have been included, and it caused delays in responding to Mrs D’s requests. It agreed to apologise to Miss X and Mrs D, credit Miss X’s account with the reduced contribution amount to September 2020 and make payment to Mrs D to acknowledge the distress this caused.

The complaint

1. The complainant, whom I shall refer to as Mrs D, complained on behalf of her daughter (Miss X) about the Council’s handling of her care cost contributions. She said it:
• failed to properly consider Miss X’s disability related expenditure and wrongly asked her to contribute towards her care costs;
• caused delays when it responded to her requests to have the expenditure reconsidered; and
• failed to put Miss X’s account on hold as it said it would.
2. As a result, Mrs D said she experienced distress and uncertainty, and had time and trouble bringing her concerns to the Council’s attention. She also said Miss X experienced distress as she had not been left with enough money to enjoy a reasonable standard of living.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. 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

7. As part of my investigation, I have:
• considered Mrs D’s complaint and the Council’s responses;
• discussed the complaint with Mrs D and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• considered the relevant law, guidance and Council policy.
8. Mrs D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Charging for social care

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 settings other than care homes. A council has discretion to charge for non-residential care following a person’s needs assessment. Where it decides to charge, a 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, 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 costs it incurs to meet a person’s assessed eligible needs.
11. People receiving care and support other than in a care home need to retain 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

12. Where a council takes disability-related benefits into account when calculating how much a person should contribute towards the cost of their care, it should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE) to meet any needs the council is not meeting. The Care and Support Statutory Guidance sets out a list of examples but 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 Fees and Charges Policy for Adult Social Care

13. The Council’s Policy sets out how it will assess individual’s care charges and care contributions. This includes how it assesses disability related expenditure for individuals who are in receipt of a disability related benefit.
14. The Policy says a standard amount of £23 per week is applied to an individual’s financial assessment as a minimum. If a person feels the standard amount is not enough to meet their costs, it will offer an assessment of the person’s disability related expenditure so certain items can be disregarded in line with national guidance and regulations.

What happened

15. Miss X has health conditions which incudes severe autism with learning disabilities and obsessive-compulsive disorder (OCD). She lives in a flat and has 24hour care seven days a week provided by a care provider under a direct payment. She is liable to pay for her own utilities.
16. In 2016 the Council assessed Miss X’s contribution towards her care to be nil. However, it 2019 she started receiving housing benefit, and the Council reviewed her care contributions. Its financial assessment found she had to make a contribution towards her care costs based on her income.
17. In Autumn 2020, Miss X’s mother, Mrs D, asked the Council why she had to contribute toward her care costs. She explained Miss X had higher costs to pay for due to her health conditions which included energy, water, and petrol.
18. The Council told Mrs D it had reassessed Miss X’s circumstances and income, and found she had to contribute. However, as Miss X may have additional expenditure due to her health conditions, it shared its disability related expenditure (DRE) form for Mrs D to complete.
19. Mrs D shared Miss X’s DRE form in September 2020, which included costs towards:
• utilities, water and petrol;
• internet, TV licence, replacement costs for TV, laptop and other hardware; and
• entertainment, memberships, excursions, and holidays.
20. The Council’s Financial Assessment Team found it could not consider some of the expenditure listed on Miss X’s DRE form. The Council’s Adult Social Care Team (ASC) reviewed the expenditure and declined Mrs D’s request. So, Miss X’s assessed contributions remained unchanged.
21. In 2021 Mrs D spoke to the Council’s Social Worker allocated to Miss X’s case regarding the disability related expenditure. She said the social worker believed some of the cost could be approved and sought approval. However, the Council’s Financial Assessment Team refused her request.
22. In Summer 2021 the Council’s Personal Budget Support Service started managing Miss X’s Direct Payment. This meant the full agreed services were paid in her Direct Payment, and it would invoice her for payments of her assessed contributions. It sent a letter to Mrs D explaining the change. The Council also explained the change to Mrs D following a call from her.
23. In Autumn 2021 the Council reviewed its Direct Payment for Miss X and shared its agreement with Mrs D.
24. Mrs D continued to question the Council about Miss X’s care cost contributions and her disability related expenditure, which she said left Miss X with too little money to manage her daily life and needs. She also asked her local MP to raise her concerns with the Council.

Mrs D’s complaint

25. In late 2021 Mrs D complained to the Council about Miss X’s Direct Payment and the contributions she had to make towards her care costs. She asked the Council to put Miss X’s contributions on hold, and said the Council had:
• failed to properly consider Miss X’s disability related expenditure and wrongly asked her to contribute towards her care costs; and
• caused delays in responding to her requests to have the expenditure reconsidered.
26. The Council put a hold on Miss X’s account but continued to send invoices.
27. In April 2022, the Council told Mrs D it had reviewed Miss X’s contributions and disability related expenditure. It found it should have reduced her contributions as she had some eligible expenditure for water, heating, petrol and some cleaning costs. It said it would backdate this to September 2021, and a credit for the balance was made on Miss X’s account. It also apologised for the delay in reconsidering her request and responding to her concerns.
28. Mrs D was not satisfied with the reduction the Council had made, and asked it to consider it again, but the Council did not change its view in its final complaint response.
29. Mrs D remained unhappy with the Council’s response, and that it had continued to send invoices when Miss X’s account was supposed to be on hold. She asked the Ombudsman to consider her complaint.
30. In response to my enquiries the Council reconsidered its view. It found it was not enough to backdate Miss X’s amended disability related expenditure to September 2021, but this should have been backdated to September 2020 when Mrs D first submitted Miss X’s DRE form. It proposed to create a credit on Miss X’s account with the backdated amount and pay Mrs D £200 to acknowledge the distress and uncertainty she experienced, including the time and trouble she had to bring her concerns to the Council’s attention.

Analysis and findings

31. Mrs D’s complaint relates to decisions the Council made since September 2020. Her complaint is therefore late. However, I have found it appropriate to exercise my discretion to consider her complaint. This is because she has continued to raise her concerns with the Council, and the Council has since agreed it should have taken more of Miss X’s disability related expenditures into account.

Charging and disability related expenditure

32. After the Council had assessed Miss X’s care needs, it was entitled to charge a contribution towards her care costs. In doing so it must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care Act 2014. This includes having regard to Miss X’s expenditure which relates to her disabilities.
33. The Council has agreed some of Miss X’s disability related expenditures should have been included since September 2020. It has created a credit on Miss X’s account with its amended financial assessment of its decision.
34. As Mrs D had provided Miss X’s DRE form to the Council in September 2020, it was at fault for not putting her disability related contributions in place at the time. The Council has since corrected its error and credited Miss X’s account.
35. I found Miss X may have experienced some distress due to the Council’s handling of her disability related expenditure. However, as the reduction in her contributions was relatively small, I am satisfied an apology is enough to remedy the injustice this caused her.
36. I understand Mrs D may still disagree with the amount the Council decided Miss X has to make towards her care costs. I have therefore reviewed the Council’s financial assessments. I am satisfied it has properly considered Miss X’s DRE form in line with the Regulations. It has reached a view it was entitled to make, I cannot therefore criticise the merits of its decision.

Council’s handling of Mrs D’s concerns

37. The Council agreed it should have addressed Mrs D’s concerns about Miss X’s disability related expenditure sooner, and it caused delays in providing its responses to her. This was fault, which caused Mrs D some distress and uncertainty.
38. Following my enquiries, the Council proposed to apologise to Mrs D and make a payment to acknowledge the distress this caused her, including the time and trouble she had to bring her concerns to its attention. I have found the Council’s remedy to be appropriate to the injustice it caused her.

Suspending Miss X’s account

39. The Council agreed to place Miss X’s account on hold when Mrs D complained to the Council in late 2021. However, it continued to send its invoices for her contributions towards her care.
40. I have not found the Council at fault as the account was placed on hold for any recovery action.
41. I acknowledge Mrs D felt the Council should not have sent its invoices as she was disputing the disability related expenditure. However, it was required to continue to provide its invoices as set out in the Regulations, and I have not seen any evidence it chased Miss X or Mrs D for missing payments.

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Agreed action

42. To remedy the injustice the Council caused to Mrs D and Miss X, the Council should, within one month of the final decision:
1. apologise in writing to Mrs D and Miss X;
2. pay Mrs D £200 to acknowledge the distress and uncertainty the Council’s fault caused, including the time and trouble she had to bring her concerns to its attention; and
3. credit Miss X’s care account with its revised disability related expenditure reduction to September 2020.
43. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. remind its Financial Assessment and Adult Social Care Teams of the process and eligibility criteria for disability related expenditure to ensure correct and proper decisions are made from the outset when it receives requests or concerns about care charge contributions.
5. Remind its Adult Social Care staff to respond to requests and reviews for disability related expenditure in a timely manner, and to keep service users, or their representative, informed if there are delays in reviewing its decisions.

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Final decision

44. I have completed my investigation with a finding of fault, the Council’s proposed remedies were suitable to address the injustice its faults caused.

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Investigator's decision on behalf of the Ombudsman