Summary: There was fault in the way the Council decided whether some costs should be considered as a disability related expenditure. The Council did not properly consider Mr B’s individual circumstances and disability and this caused unnecessary delay in the decision. The Council has agreed to apologise and provide a financial remedy.

The complaint

1. Mr B has physical and mental health needs linked to a diagnosis of autism spectrum disorder (ASD). He complains about the Council’s calculation of his financial contribution to his care package. His mother, Mrs C and his advocate, Ms D represent him in the complaint.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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

4. I have discussed the complaint with Mrs C and Ms D. I have considered the documents that Mrs C, Ms D and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.

Law, guidance and policies

5. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge. The Council also has its own policies.

Assessment and care plan

6. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs and a personal budget which sets out the costs to meet the needs.

Contribution

7. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care.

Minimum income guarantee

8. Because a person who receives care and support outside a care home will need to pay their daily living costs such as rent, food and utilities, the charging rules must ensure they have enough money to meet these costs. After charging, a person must be left with the minimum income guarantee which is set out in the regulations.

DRE

9. Where disability benefits are taken into account, the Council must allow the person enough benefits to pay for necessary disability related expenditure (DRE) to meet any needs which are not met by the Council. The Guidance states that there is no definitive list of DRE and any reasonable additional costs directly related to a person’s disability should be included.

Council’s DRE policy

10. The Council has its own non-residential charging policy and DRE. This says DRE will be considered when:
• The person has little or no choice other than to incur the expenditure, to maintain independence of life.
• It would be unreasonable to expect a lower cost alternative item or service to be used.
• The cost can be verified by receipts/bills/invoices.
• It is deemed necessary by the Council, the need for the expenditure has been verified by an appropriate expert.
11. The policy says the DRE will not be considered when:
• It is ‘normal’ expenditure.
12. The policy also says:
• Internet access will only be deemed DRE for those who are blind, partially sighted or deaf. The cost of the line rental will not be classed as DRE as owning a phone line is ‘normal’ expenditure.
• It is not possible to provide a comprehensive list of DRE as the process needs to be as flexible as possible to account for a person’s needs.

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What I found

What happened

13. Mr B moved to a supported housing placement in August 2018. The chargeable care started on 8 November 2018.
14. At the time of Mr B’s initial move, the care plan said Mr B would have access to support from the carers at the placement and receive an additional 14 hours one-to-one support. The weekly personal budget was £868.
15. The Council’s finance officer carried out a financial assessment over the telephone on 11 July 2018 and spoke to Mrs C. Unfortunately, there is no record of what was discussed during that conversation, although I have seen the assessment which is a list of the income and outgoings and possible DREs.
16. The Council wrote to Mrs C on 17 July 2018 to ask her for further financial information. The Council did not receive a reply to this letter, as far as I am aware.
17. The Council wrote to Mr B and Mrs C on 10 October 2018 and said that ‘at present’ Mr B’s assessed available income was £125, however this may change once the night time support was reviewed and if the Council received the information it had previously requested. The contribution would also depend on the cost of the care package.
18. The Council wrote to Mr B and Mrs C on 23 October 2018 and said it had now completed the financial assessment and Mr B would have to contribute £90 a week to his care package. It had allowed DRE towards food and drink costs on train journeys and contents insurance. It also disregarded the PIP care payment as Mr B did not have care needs during the night.
19. The Council said there was nothing more it could do ‘without knowing how [Mr B] spent the cash he withdraws from his bank account.’ It said that, if there was any other spend that Mr B had not told the Council about, he should let them know and provide receipts. The Council said it could not enter into further correspondence without receipts.
20. Mrs C sent a letter of appeal about the financial assessment on 1 November 2018 which listed several DREs which she said the Council should include, namely travel costs, extra washing and drying costs, clothing allowance, heating, mobile phone and internet.
21. This then triggered a long correspondence between the Council, Mrs C and Mr B’s representative, Ms D, about the DREs.
22. In the end, the Council agreed DRE for the costs of:
• Meal and drinks on train journeys.
• Contents insurance.
• The move to the placement.
• Replacement furniture and delivery.
• Travel cot which Mr B used to store items.
• Wheelchair and cushion.
• Extra heating and electricity costs.
• Agency carers who provided care to Mr B’s legs.
23. The Council approved most of those costs in March 2019 after a letter from Ms D in February 2019.
24. I will not go into detail about each letter or each DRE as most of the issues have been resolved. I will focus my investigation on the assessment of the DREs which remained in dispute and which were the focus of most of the later correspondence.
25. The matter was further complicated by the fact that Mr B broke his leg in February 2019 and then later needed surgery to address this. This meant that there were months when Mr B had additional mobility problems and a greater need for support to address this. The Council increased the hours of one-to-one support from 14 hours a week to 28 hours a week on a temporary basis. The personal budget increased from £686 to £1108 a week because of the additional support he was receiving.

Additional laundry and clothing

26. In her letter of November 2018, Mrs C said Mr B was entitled to DRE related to extra costs for laundry (electricity for the washing machine and dryer) and extra costs for clothing. She referred to the guidelines which said that an allowance was made if a person had more than four loads of washing per week due to incontinence or other disability related or medical reason.
27. She said: ‘Due to his increased need to wash his clothing and frequent replacements, due to damage to them from his blackouts.’
28. The finance officer rejected these costs in December 2018 as she said she had spoken to Mr B’s social worker and the social worker said she had not been made aware of this need during the assessments or reviews. In the letter dated 4 February 2019, the Council said it had also checked the report by an occupational therapist who had assessed Mr B but this also did not mention any incontinence or additional laundry.
29. Mr B’s advocate, Ms D gave further information in her letter of February 2019. She said Mr B took medication for ‘treatment of an overactive bladder with symptoms of urge urinary incontinence, urgency and frequency’. She said Mr B had blackouts and would lose consciousness. She said people who were unconscious lost control of their bladder and bowels and were therefore incontinent. She also said Mr B had frequent falls which caused his clothing to be torn and soiled.
30. The Council agreed the cost for additional laundry in March 2019 because some of the social worker’s paperwork referred to blackouts. It said it would consider the cost of replacement clothing and bedding if Mrs C could provide evidence through receipts.
31. The Council then changed its position in November 2019. The social worker said that she had not been made aware from either Mr B or staff that there were incidents where clothing or bedding had been soiled.
32. The social worker also said Mr B had not had any falls, apart from the fall that caused him to break his leg, but, on that occasion, Mr B lost his footing on steps coming out of the bank. She was therefore seeking further evidence from Mr B’s care staff and Mr B’s GP and said she needed to review Mr B’s needs.
33. The Council wrote to Mr B in January 2020 and said the social worker had said that Mr B had never been incontinent. There was therefore no need for additional laundry or replacement clothing or bedding.
34. Mrs C wrote to the Council in February 2020. She said Mr B had ‘accidents’ during the night and so his washing machine was used daily. She said Mr B had blackouts which meant he could fall and damage his clothing. Mr B’s trousers also had to be cut to size to accommodate his broken ankle. Mrs C was going to send in receipts for clothing.
35. In March 2020, the social worker said there was no evidence of the incontinence and Mr B himself had said he had not had any issues and he had not had episodes of incontinence. The manager at Mr B’s placement said that Mr B had not had any known episodes of incontinence. Mr B also told the social worker he did not fall during his blackouts as they happened when he was in his chair. The social worker said Mr B had not fallen to the point where his clothes had been damaged.
36. The Council said, in response to the Ombudsman’s enquiries, that the social worker said she asked Mr B if he had any episodes of incontinence, including when he had blackouts and he had said no, he did not. The social worker also checked with the staff who provided the support and asked if Mr B had ever had an accident (referring to an incontinence accident), and they said he had not, including following his operation, when they were providing a lot more of his personal care.

Mobile phone and internet

37. In her letter of November 2018 Mrs C said Mr B had additional communication needs because he was a person with Asperger’s syndrome. He needed frequent daily support from Mrs C to reduce his anxiety. She also said the internet was essential as his social interaction was limited and the internet was needed to follow his special interests and to keep his mental health stable.
38. Ms D clarified in her letter of September 2019 that the phone costs were £24.20 per month and the internet costs were £35 a month. She explained that Mr B’s ASD affected his communication and social ability. She said that councils often allowed these costs as DRE and she was aware the social worker had not yet discussed this issue with Mr B and should do so.
39. The Council initially (March 2019) rejected this argument as the finance officer said internet access and mobile phone ownership were ‘normal’ expenditure as most people now had access to the internet and had a mobile phone.
40. The Council changed its position in November 2019 as the social worker said that the internet use should be considered as a DRE. The Council then asked Mrs C to provide to provide ‘up to date bills for the internet expenditure’. It said that, as an indication, Ms D had said in a previous letter that the cost was £24.20 a month so this would reduce Mr B’s costs by £5.59 a week.
41. Ms D wrote to the Council in November 2019 and said she did not understand why the Council allowed the internet costs, but had not mentioned the costs of the mobile phone as they were both needed for the same reason which was that Mr B struggled with communication because of his disability.
42. The Council wrote to Mr B and Mrs C in February 2020. It said that they had provided bank statements which showed payments to the internet provider. The Council said it could not accept bank statements as evidence as the statements did not say how much of the payments were for internet and how much for other services. It wanted to see the bills which it had previously requested.
43. Ms D wrote to the Council and said that other councils had allowed a £1.44 a week allowance for mobile phone as a DRE. The Council said it could not make an allowance for Mr B’s phone but did not explain why.
44. In April 2020, the social worker agreed that Mr B used his mobile phone as a source of support so this cost would be allowed as a DRE. The Council said it agreed the £1.44 weekly allowance which Ms D had asked for and would backdate the allowance to 8 November 2018. The Council said it could not accept a bank statement as evidence of the internet use, and still needed an invoice.

The complaint

45. Ms D complained to the Ombudsman in July 2020. She said:
• The Council had been unfair in its financial assessment. The Council did not properly consider Mr B’s disability needs and had not fully considered that Mr B had needs related to his ASD rather than any physical disability. The Council had been too strict in its application of the rules and had not considered Mr B’s personal circumstances.
• The early letters from the Council were ‘more dictatorial than necessary’. She wanted the Council to stop arguing the points again and again.
• The Council had now finally allowed the mobile phone costs but it had taken too long to approve these costs.
• Mrs C was unable to provide a breakdown of Mr B’s internet costs so the Council had still not agreed this cost. The Council was going back on its earlier agreement to pay these costs and this was very unfair.
• The Council had still not approved the cost for extra washing and a clothing allowance despite clear evidence of Mr B’s needs.

Analysis

46. It is not the Ombudsman’s role to carry out the financial assessment and I cannot say what contribution Mr B should make. I have considered whether the Council acted in line with the law, guidance and policies when it assessed Mr B’s finances.
47. I have not found fault in the way the Council considered the additional costs related to Mr B’s blackouts and incontinence.
48. Mrs C initially said there were extra costs related to the blackouts as Mr B damaged his clothing during falls. Ms D then sent a letter referring to the fact that Mr B was on medication for an overactive bladder and that people who suffered blackouts were incontinent.
49. The finance officer initially rejected the arguments because there had been no mention of incontinence until that stage. It was not mentioned in the occupational therapist’s report or the needs assessments. She then accepted that there had been mention of blackouts in the documents and allowed the cost. This was odd, because, although I agree there was mention of blackouts, there was no evidence of damaged clothing or incontinence related to the blackouts.
50. The social worker then tried to obtain more evidence. She spoke to Mr B and he denied ever being incontinent, even when he had a blackout. He also denied damaging his clothes during blackouts. The care staff said they had never witnessed any incontinence or ever changed the beds for this reason. The care staff said this was the case even during the time when Mr B was less mobile because he was recovering from the fracture and surgery. At the time, staff were helping him in all his personal care needs and were providing 28 hours support a week.
51. Therefore, in my view, the Council considered the evidence it obtained and made a decision based on the evidence. The Ombudsman cannot question the merit of the decision if there was no fault in the way the decision was made.
52. I have also considered the complaint about the Council’s consideration of the cost of the internet and mobile. The Council approved the internet costs as DRE in November 2019 and the mobile phone costs in April 2020, so the complaint does not relate to the approval of the costs as DRE. The complaint relates to the delay in obtaining that approval and the long process it took to approve the costs and the wider issue of how the Council assessed Mr B’s DRE as a person with ASD.
53. I agree that there was fault in the way the Council addressed these issues.
54. Mrs C raised the internet and mobile phone costs in November 2018. She clearly explained why Mr B needed the internet and mobile phone and how this need was linked to his ASD. The underlying issues were Mr B’s communication needs, his limited social interaction and his need for emotional support.
55. The Council should have considered these issues at the time and failed to do so. There is no reason why it required almost a year and a half to approve DREs which it could have considered at the outset.
56. I also agree that the Council was too focussed on needs linked to a physical disability, not a mental disability. The underlying problem was that the Council’s DRE policy said that it would only agree internet access as a DRE for adults who were blind, partially sighted or deaf. This meant that the Council did not fully assess Mr B’s DRE on his individual circumstances or consider the impact of his ASD.
57. The finance team also did not liaise with the social worker about this issue. It was only after Ms D urged the finance team to liaise with the social worker in her letter dated September 2019 that the finance team finally spoke to the social worker. This delay in collaboration between the departments contributed to the overall delay.
58. Even after the Council agreed the internet costs as DRE in November 2019, there was still a further delay in approving the mobile phone costs, without any real reason for the delay and this was further fault.
59. I have also considered this issue in light of the wider complaint about the Council’s communication with Mrs C and Ms D. Ms D said the tone of the Council’s early letters (before November 2019) was dictatorial.
60. I cannot say there was fault in the earlier letters. I agree the earlier letters were quite direct in tone as they were saying the Council would not engage in further discussion about the costs without receipts. I can see how Mrs C could interpret this to feel that she was being accused of trying to cheat the system when this was not the case.
61. It is clear however that, if it had not been for the tenacity of Mrs C and Ms D and their numerous letters over the period from November 2018 until April 2020, the calculation of Mr B’s contribution would be a lot higher. It should not have taken that many letters and that much effort to make a decision on DRE. If the Council had fully considered Mr B and his individual needs earlier, the matter could have been resolved quicker.
62. I also understand that there is still an outstanding issue as the Council has not accepted the cost of the internet as it has not received any evidence of the cost. Mrs C said Mr B had a combined package of internet and mobile phone with a provider. She contacted the provider and asked them to send her an itemised internet bill, but they were unable to do so.
63. I have discussed this further with Ms D. There was no evidence, as far as I could see, that the Council was asking for an itemised bill of Mr B’s internet use, only for evidence of the overall cost of the internet use. Ms D agreed that Mr B should be able to provide that information, if he accessed his account or checked his emails from the internet provider. Therefore, I hope that this final issue can be resolved.

Remedy

64. I have considered the injustice linked to the fault and any remedy.
65. The main injustice is financial as the fault relates to the Council’s calculation of the contribution. The remedy is to backdate any reduction in the contribution to November 2018, the date when the Council started charging Mr B. It is my understanding the Council has backdated any DRE it agreed after November 2018 and therefore has, to a large extent, remedied the matter.
66. In terms of the internet costs, there was fault in the delay in making the decision regarding the costs but there was no fault in the Council asking for evidence of the cost. The Council has said that it will review the DRE if Mr B provides the evidence. The Council has said that, if Mr B is able to provide the evidence and the contribution is reduced as a result of this, then it will backdate this to November 2018.
67. The other injustice is the distress caused by the unnecessary delay and I recommend the Council pays Mr B £150 to reflect the distress.
68. I also recommend pays Mrs C £150 for her time and trouble in pursuing the matter.
69. I am also of the view the Council should consider making its DRE policy clearer or remind financial officers that DRE for internet costs is not always limited to people with a physical disability and that they should always consider the individual circumstances of the case.

Agreed action

70. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise to Mr B and Mrs C in writing.
• If Mr B provides evidence of his internet costs which result in a reduction of his DRE, then the Council should backdate this to November 2018.
• Pay Mr B £150 for the distress caused by the fault.
• Pay Mrs C £150 for her time and trouble in pursuing the complaint.
• Consider reviewing its DRE policy in relation to mobile phone and internet costs.

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Final decision

71. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman