Summary: Mr F complained the Council failed to meet his care and support needs and wrongly charged him for his care. I found no fault in the way the Council decided how to meet Mr F’s needs or in its calculations of his contributions. The Council failed to carry out a carer’s assessment of Mr F’s carer, Mr J. This was fault which causes Mr J uncertainty about whether other support could have been offered. The Council has agreed to offer a carers assessment to Mr J and pay him £300 to remedy the injustice.

The complaint

1. Mr F complained the Council failed to:
• Provide the care and support which meets his needs as it will not fund the most suitable day centre.
• Carry out a carer’s assessment of his carer (Mr J) and provide respite.
• Allow a disability related expense for medicinal cannabis.
• Correctly charge him for his care and support.
2. This has caused him and his carer significant distress and financial loss and has adversely affected his mental health.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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(i), as amended)

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How I considered this complaint

6. I spoke to Mr F’s representative, Mr J, about the complaint and considered the information he sent, the Council’s response to my enquiries and the Care and Support Statutory Guidance.
7. Mr J 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

Relevant law and guidance

Care and support

8. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council.
9. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan. Councils should keep care and support plans under review, at least every 12 months.
10. In determining how to meet needs, the local authority may take into reasonable consideration its own finances and budgetary position. This includes the importance of ensuring that the funding available to the council is sufficient to meet the needs of the entire local population. The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value. (s.10.27, Care and Support Statutory Guidance)
11. The courts have confirmed a person’s wishes are not the same as their needs and wishes are not the overriding consideration. Case law (R (Davey) v Oxfordshire County Council [2017] EWHC 354 (Admin)]) found while a person’s preferences had to be taken into account, these had to be distinguished from their needs for care. The court of appeal commented that ‘there is no duty to achieve the outcomes which the adult wishes to achieve; rather it is a duty to assess whether the provision of care and support could contribute to those outcomes’. The wishes of the individual may be a primary influence, but they do not amount to an overriding consideration.

Support for carers

12. Where somebody provides care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. The Care Act 2014 says the council may meet the carer’s needs by providing a service directly to the adult needing care.

Direct payments

13. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. A personal budget sets out the cost of meeting eligible needs, the amount a person must contribute to that cost and the amount the council must contribute. A personal budget can be administered as direct payments to enable people to commission their own care and support.

Charging for care and support

14. Where a council arranges care and support to meet a person’s needs, it may charge the adult for the cost of the care. Councils must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of their care. In assessing what a person can afford to pay, a council must take into account their income, such as pensions or benefits.
15. 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 the government and reviewed each year. A council can allow people to keep more than the MIG.

Disability Related Expenditure

16. Councils can take disability-related benefits 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.
17. The Care and Support Statutory Guidance says any reasonable additional costs directly related to a person's disability should be included. It sets out a list of examples of such expenditure, including:
• costs of any specialist items needed to meet the person’s disability needs.
• other transport costs necessitated by illness or disability, including costs of transport to day centres, over and above the mobility component of DLA or PIP... In some cases, it may be reasonable for a council not to take account of claimed transport costs – if, for example, a suitable, cheaper form of transport, for example, council-provided transport to day centres is available, but has not been used.
18. The Guidance says it may be reasonable for a council not to allow for items where a reasonable alternative is available at lesser cost. For example, a council might adopt a policy not to allow for the private purchase of items available from the NHS.
19. The Council’s DRE practice guidance says allowances for disability-related expenses can be made when:
• the expense is a necessary need specifically related to the person’s disability or illness.
• the expense cannot be provided for a lower cost or for free by another agency.
• the expense exceeds the cost a person without a disability or medical condition would have to pay for the same item or service.
• the expense is not being met by the county council as part of a person’s personal budget or by other county council directorates.
20. The policy says DREs will not be allowed if the expense could be met by the NHS. For example nutritional supplements and travel to medical appointments.

What happened

21. I have set out the key events. This is not meant to detail everything that happened.
22. Mr F has a disability and care and support needs. He receives the Personal Independent Payment (PIP) and lives with Mr J, who is his carer. Mr F was attending a day centre (Centre X) one day a week and had been self-funding this.
23. In December 2023, the Council’s contract with Centre X ended. This meant that to attend, Mr F would need to pay using a direct payment.
24. The Council says another day centre (Centre Y) reviewed Mr F’s care and support assessment in January 2024 and advised it could meet his needs. Centre Y’s daily rate is less than Centre X’s rate.
25. The Council reviewed Mr F’s care and support needs in June 2024. This found that Mr F had eligible needs for accessing the community, nutrition and personal hygiene. Mr F did not want to have one-to-one support in the community and wished to attend Centre X. Mr J wished to reduce his caring role. The assessment found that Mr J’s needs could be met by attending a day centre four days a week and having personal assistant support for 7 hours a week. This would be funded by direct payments to enable Mr F to pay for Centre X if he wished. The personal budget in the care plan was sufficient for four days a week at Centre Y. The assessment said that Mr J had been offered a carer’s assessment.
26. Mr J asked the Council to consider various expenses as DREs. These were the extra costs of attending Centre X compared to Centre Y; Mr J’s transport costs to take Mr F to Centre X; and costs for Mr F’s dog, which his GP had said was beneficial.
27. The Council assessed Mr F’s finances. It left Mr F with the MIG and initially found he should contribute £116 per week to the cost of his care. After Mr J clarified he was not Mr F’s partner, the Council amended the amount to £72.41. The Council had taken into account a DRE of £6.65 per week for additional laundry costs.
28. The Council wrote to Mr F on 5 August with the outcome of his financial assessment. It had not agreed to the DREs Mr J had requested. It said the direct payments and personal budget were to meet Mr F’s care and support needs, the transport costs should be covered by the PIP mobility benefit and his dog expenses should be funded by his MIG.
29. Mr J made a formal complaint to appeal the decision about the DREs on 26 November. The Council replied on 20 December that:
• Centre Y was able to meet Mr F’s needs though the direct payment meant he was able to choose Centre X if he wished.
• Mileage costs for the personal assistant were not factored into the care plan or considered a DRE.
• Whilst the GP had outlined the benefits of owning a dog, it was not a registered support dog to be funded through a personal health budget. Therefore dog ownership was not a disability related benefit.
30. Mr J remained dissatisfied. In response he also raised that Mr F had a private prescription for medicinal cannabis, following a review by the GP, and asked if this could be considered as a DRE.
31. The Council’s final response on 31 December said medicinal cannabis could not be funded as a DRE as it was a health-related expense. It advised Mr F to ask for it to be funded with a personal health budget.
32. Mr J brought the complaint to the Ombudsman on Mr F’s behalf. He said the NHS could not prescribe medicinal cannabis for Mr F’s conditions and therefore it could not be funded by a personal health budget.
33. Mr F’s contributions have since reduced as the Council has allowed a DRE for cleaning.

My findings

34. It is not the Ombudsman's role to decide what, if any, care and support a person needs. Nor to determine whether costs are disability related expenditure. That is the council's role.
35. My role is to consider if the council has followed the correct process for establishing a person's needs and in considering requests for disability related expenses. In doing so we look at what information the council considered, and if it took account of the service user’s and carer’s wishes. If a council considers all this information properly the Ombudsman cannot find a council at fault just because a service user disagrees with its decision, or outcome of an assessment.
36. I have considered the care and support assessment carried out in June 2024. It describes Mr F’s needs and how these can be met. The assessment involved Mr J. There is no evidence of fault in the way it was carried out. I therefore cannot question the professional judgment of officers about how Mr J’s needs should be met.
37. The assessment notes that Mr F’s wish was to continue attending Centre X and that he did not wish to visit other day centres. However the Council determined that Centre Y was able to meet Mr F’s needs. Mr J says the Council must respect Mr F’s wishes, but the law allows councils to take their finances and budgetary position into account when determining how to meet a person’s needs and the courts have found that a person’s wishes are not the overriding consideration. I therefore do not find it was fault for the Council to suggest Mr F attend Centre Y or provide him with a personal budget up to the cost of Centre Y, rather than Centre X.
38. The June 2024 assessment says that a carers assessment was offered to Mr J but there is no evidence this has been done. This is fault which causes Mr J uncertainty about whether other support, such as additional care to Mr F to provide him with respite, could have been offered. This is an injustice.
39. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a moderate, symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might.
40. There was an initial error in the financial assessment in August 2024 but this was rectified the next day and did not cause Mr F any injustice. There is no evidence of fault in the way the Council has calculated Mr F’s contributions.
41. I have reviewed how the Council decided whether to allow the DREs requested. The Council considered Mr F’s care and support assessment and the supporting evidence from Mr J. It then applied this information to its practice guidance and the statutory guidance when deciding the amount of DRE to allow. It considered Mr J’s appeal and has agreed to some DREs.
42. Having reviewed the statutory guidance, I have found no fault in the Council’s decision-making. I therefore cannot challenge its view that the extra costs of Centre X, Mr J’s mileage, dog and medicinal cannabis are not expenses that are a necessary need specifically related to Mr F’s disability.

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Action

43. Within a month of my final decision, the Council has agreed to:
• Offer Mr J a carer’s assessment.
• Apologise to him for the failure to carry one out previously and pay him £300 to remedy the uncertainty that has caused.
44. The Council should provide us with evidence it has complied with the above actions.

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Decision

45. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman