Summary: Mr X complains the Council has failed to deal properly with the charges for his care, resulting in it charging him more than he can afford to pay. The Council failed to explain why it accepted some of his car expenses as disability related expenditure but not others. The council needs to apologise and reconsider its decisions, providing reasons for them.

The complaint

1. The complainant, Mr X, complains the Council has failed to deal properly with the charges for his care, resulting in it charging him more than he can afford to pay.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have investigated Mr X’s concerns about the charges for his care, including the failure to include all his disability related expenditure. I have not investigated Mr X’s concern that the Council forced Mr X to accept direct payments. While the Council may have encouraged Mr X to consider direct payments, things have moved on since Mr X first contacted us, and the Council is now commissioning his care again. There is therefore not enough evidence of injustice to warrant investigating this issue.

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How I considered this complaint

5. I have 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

What happened

7. Mr X has autism. The Council is providing a package of care to meet his eligible needs under the Care Act 2014.
8. When we investigated Mr X’s previous complaint (22 017 428) in 2023, among other things, we found fault with the Council for fettering its discretion by having a blanket policy which meant it did not consider a bank loan for his car as a disability related expenditure. At our recommendation, the Council agreed to properly consider whether Mr X’s loan payments should be considered as part of his assessment of charge, and to provide written reasons if it decided the payments should not be allowed (as disability related expenditure).
9. In January 2024 Mr X told the Council he did not have a loan to buy his car. He said he wanted it to include the running costs of his car (i.e. tax, insurance etc). The Council invited him to provide evidence of these expenses. Mr X sent the Council various documents at the end of February.
10. The Council wrote to Mr X on 3 April. It said it had agreed to include these expenses (backdated to when he started receiving support from the Council):
• Car insurance: £23.06 a week (£49.96 less his weekly personal independence payment for mobility of £26.90)
• Car tax: £4.85 a week
• Breakdown cover: £8.93 a week
11. It said it had used the wrong personal allowance for Universal Credit (£67.22 rather than the over 25 rate of £84.86) but would only apply this from the next invoice, as it was the Council’s error to use the wrong rate. It said the charges from August 2023 to February 2024 £973.78 would reduce by £599.38. From 12 February 2024 Mr X had to pay £32.04 a week.
12. In May Mr X told the Council there were other costs he wanted it to take into account: car maintenance (£500 spent since January); and fuel (around £70 a week). He provided receipts to support his request.
13. On 22 July the Council noted there were exceptional circumstances which meant the use of a car supported Mr X to achieve these outcomes;
• Managing and maintaining nutrition
• Developing and maintaining family or other personal relationships
• Accessing and engaging in work, training, education or volunteering
• Making use of necessary facilities or services in the local community, including public transport and recreational facilities or services
14. The Council noted that without a car, it would have to provide more care and support for Mr X, and transport to meet the above outcomes. It noted it had included breakdown cover because it was important for Mr X to keep himself safe if he had a breakdown, because he has autism. It also noted it had not included petrol costs, as this varied according to usage. The Council thought Mr X may need some help with budget management, so would ask someone to support him with this. Mr X got a copy of this note from the Council after making a subject access the request in January 2025.
15. In August, when the Council responded to complaints Mr X made in June and July, it said it had made a decision on 3 April about his request to include fuel and car maintenance/repairs as disability related expenditure. It said it had only agreed to accept these expenses as disability related expenditure:
• Car insurance
• Car tax
• Breakdown cover

Is there evidence of fault by the Council which caused injustice?

16. 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.
17. The Council has a standard allowance of £17.40 a week for disability related expenditure. However, anyone with expenditure over that amount will have the actual amount disregarded from their financial assessment. The Council’s Charging Policy 2024-2027 includes a list of possible disability related expenditure taken from the Government’s Care and Support Statutory Guidance. This does not refer to cars but does refer to “other transport costs necessitated by illness or disability”.
18. It is not for the Ombudsman to say what should count as disability related expenditure. Our role is to look at how council’s make decisions. It is a basic principle that council’s need to explain the reasons for their decisions.
19. The Council accepts Mr X needs a car to meet his assessed needs. However, it has not explained why it has accepted some of the costs associated with the car as disability related expenditure but not others. When responding to Mr X’s complaint in August, the Council simply referred him back to its letter of 3 April 2024. But neither letter explained why the Council did not accept fuel and maintenance costs as disability related expenditure. That was fault by the Council.
20. It appears from the note made in July that the Council did not accept fuel costs as disability related expenditure because they were variable. But that is not a valid reason to disallow an expense as disability related expenditure. Other variable costs, such as heating a home, may be legitimate disability related expenditure. The issue the Council needs to consider is whether the costs arise from someone’s disability.

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Action

21. I recommend the Council:
• Within four weeks writes to Mr X apologising for the failure to explain the reasons for its decisions on his application for disability related expenditure and reconsiders his requests to include car maintenance and fuel, providing the reasons if it does not accept his requests.
22. The Council has agreed to do this. It should provide us with evidence it has complied with the above actions.

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Decision

23. I find fault causing injustice. The Council has agreed to take action to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman