Summary: We have not found fault in the way the Council assessed Mr C’s finances. Mr C’s father may ask for a review of Mr C’s charges if he has new information the Council should consider. The Council is also considering a review of its charging policy because of new case law.

The complaint

1. Mr B complains on behalf of his adult son, Mr C, who does not have the mental capacity to make the complaint.
2. He says the Council has not properly assessed Mr C’s finances and his disability related expenditure. He does not agree that Mr C should pay a financial contribution to the cost of his care package.

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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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I have discussed the complaint with Mr B. I have considered the information he and the Council have sent, the relevant law, guidance and policies and Mr B’s comments on the draft decision.

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What I found

Law, guidance and policies

6. 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.

Personal budget

7. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. The personal budget gives the person information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be an amount enough to meet the person’s care and support needs.

Direct payments

8. A person can choose to receive direct payments to arrange the care and support themselves.
9. The amount of direct payment is derived from the personal budget set out in the care and support plan.

Financial assessment

10. Councils must carry out a financial assessment if they decide to charge for the care and support.

Minimum income guarantee

11. When a council assesses a person’s income, they must ensure that the person is left with the minimum income guarantee (MIG) after charges have been deducted.
12. The government publishes a circular each year which sets out what the MIG will be for that year. The government has not changed the MIG since 2015.
13. The purpose of the MIG is to ensure that a person has sufficient funds to meet their 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.

Disability related expenditure (DRE)

14. The Guidance says that where disability-related benefits are taken into account, the local authority should allow the person to keep enough benefit to pay for necessary disability-related expenditure to meet any needs which are not being met by the local authority.
15. There is no exhaustive list of DREs, but the Guidance lists some examples.

Council’s charging guidelines

16. The Council’s charging guidelines say:
• When considering DRE, the Council uses a banded sum linked to the level of DWP disability benefits. The allowance for the highest DWP rate is £25.

What happened

17. Mr C is an adult with additional needs because of physical and learning disabilities. He lives at home with his parents who provide care and support. He also has a care package which is funded by the Council.
18. The Council carried out a financial assessment of Mr C in 2015:
• Mr C’s total benefit income was £260.85 per week but the Council disregarded the disability living allowance mobility (£57.45) and night needs (£27.20) so the total income it included in the calculation was £176.20.
• The MIG was £151.45.
• The Council allowed DRE of £32.30 per week. This included £11.50 for laundry costs.
• Mr C’s weekly contribution was nil as the DRE was more than the difference between the income and the MIG.
19. Mr C switched from income support and disability living allowance to employment and support allowance and personal independence payments (PIP) because of changes in the benefit system.
20. Mr C’s care plan from January 2020 said Mr C received:
• 5 days at a day centre per week.
• 45.5 hours of support per week by a personal assistant.
• 42 nights respite.
• Managed account fee.
21. The total personal budget was £1573.86 per week.
22. The Council assessed Mr C’s finances in January 2020:
• Mr C’s income was £277.30. The Council disregarded £61.20 (PIP mobility element) so the total income it included in the calculation was £216.10.
• The MIG was £151.45.
• The DRE was £25.
• His contribution was £39.65.
23. The Council wrote to Mr C on 30 January 2020 to inform him of the new contribution. The Council had allocated Mr C the highest band of DRE (£25) based on his DWP rate.
24. Mr B rang the Council on 4 February 2020 and complained about the charges. The Council sent a DRE form to Mr B so that he could appeal the decision.
25. Mr B sent his appeal to the Council on 10 February 2020 and said:
• Mr C had extra costs for a wheelchair cushion, waterproof cap, a wheelchair bag, Kylie sheets and the tumble dryer was replaced every two years.
• Mr C had a football season ticket and a cinema season ticket.
• Mr C used a wheelchair adapted vehicle which used £20 per week in diesel.
• Mr C was incontinent and ‘slobbered’ constantly. This meant his clothing and bedding were soiled. The washing machine and dryer were used daily for three hours to do laundry.
• Mr C had poor circulation and was always cold so the heating had to be on constantly.
• They had a higher usage of gas, electricity and water as the heating, the washing machine and the dryer were used more. Mr B said his energy costs were paperless but he estimated they were around £1,200 per year.
26. The Council replied on 28 February 2020 and said:
• It allowed DRE for the wheelchair cushion, waterproof cape and bag for the wheelchair, Kylie sheets, tumble dryer and excess laundry costs. The total was £12.84. The Council had allowed the costs that Mr B had claimed for these items except for the cost of laundry costs where it had applied a standard cost of £3.85.
• The average heating costs of a property similar to Mr C’s home was £1,500 so it could not allow an extra DRE for heating.
• The season tickets should be paid from Mr C’s general income as this was part of the cost of living and not a cost related to the disability.
• The £20 a week in diesel was part of the cost of living.
• The total DRE of £12.84 was less than the £25.00 which Mr C was allowed under the Council’s banding system. Therefore, the Council did not use its discretion to allow a DRE over the banding of £25.
27. Mr B complained to the Council on 4 March 2020. He said Mr C could not afford the contribution, the Council had made a mistake in its financial assessment and was discriminating against disabled people. He also said the Council officer he spoke to on 4 February 2020 had been very rude and unprofessional and had put the phone down on him.
28. The Council replied to Mr B’s complaint on 30 March 2020. The Council explained that the main reason for the increase in Mr C’s contribution was:
• Because of changes in the benefit system, Mr C’s assessable benefit income had increased from £176.20 a week in 2015 to £216.10 in 2020.
• In 2015 the Council had to disregard the night element of the disability living allowance, but this was not the case with PIP in 2020.
• It had allowed all the DRE for which Mr B had provided evidence and this came to £12.84 which was less than the standard £25 which he had been provided with.
• The telephone call on 4 February 2020 had been difficult as the Council officer had tried to explain the financial assessment process but Mr B was not prepared to listen. Mr B had been angry about the decision and the officer had ended the conversation in line with the Council’s guidance.
29. Mr C says he wrote two letters to the Council’s cabinet office in March 2020 and one in May 2020. The Council does not have any records of those letters.
30. Mr B wrote to the Council on 2 July 2020 as he questioned whether the contribution should be reduced as Mr C was unable to access day services because of Covid-19. The Council replied on 20 July 2020 and said Mr C’s day services were funded by continuing health care (NHS) and were therefore outside of the calculation of the contribution which related to the Council funded care.
31. The Council has provided me with copies of letters that Mr B wrote on 19 August 2020 and on 6 September 2020 where Mr B referred to the previous letters he had written in March and May. Mr B said he wanted to know why Mr C was being charged for Council services when he was funded by the NHS and said he had not received a reply to this question.
32. The Council replied on 25 September 2020 and said it had provided a full reply to his complaint in March 2020. It said Mr C could go to the Ombudsman as he had completed the Council’s complaints process.
33. Mr B then came to the Ombudsman as he was not satisfied with the financial assessment.
34. Mr B has explained further why he disagreed with the financial assessment. He explained why the cost of laundry was so high. Mr B had said he paid £20 a week on laundry costs. He said that they had to use the washing machine and drier every day for three hours which cost £2 a day in electricity. He also had to pay extra washing powder because of the frequency of the washes.
35. Mr B said he used an agency to manage the direct payments. He said that this cost £5.50 a week and this was not included as a DRE.

Further information

36. I asked the Council how it had assessed the cost of the laundry as Mr B said he spent £20 a week on laundry. The Council said Mr B had not provided any evidence of his laundry costs. Mr B had said he had to buy a tumble-drier every two years and the cost of this (£179.98) had been allowed, spread over two years. The Council used standard figures provided by the National Association of Financial Assessment Officers to calculate extra laundry costs and it had used those figures to calculate the laundry costs.
37. Mr B has said the Council discriminated against disabled people by charging them a contribution. There has been recent case law which commented, among other things, on how another council considered the impact on severely disabled people, when it made changes to its charging policy. I asked the Council how it was considering the impact of this case. The Council has said that a working group has been set up by several councils and other organisations to assess the implications of this judgment. The Council is waiting for the outcome of this review to decide whether to make any changes to its own charging policy.

Analysis

38. I appreciate that Mr B is upset about the request for a contribution. Mr C is severely disabled and has a small income which consists of benefits. Mr B feels it is unfair that the Council charges Mr C for its services from the small amount of money that he receives.
39. It is not the Ombudsman’s role to carry out a financial assessment. I have investigated whether the Council has carried out its assessment in line with the relevant law, guidance and policies.
40. I have not found fault in the way the Council assessed Mr C’s income.
41. As the Council explained, the main reason why Mr C now has to pay a contribution and did not have to do so in 2015 was the change in his benefits and the fact that he had started to receive PIP. This resulted in a significant increase in the contribution for three reasons.
42. Firstly, Mr C’s income had increased. Secondly, because Mr C received PIP, the amount the Council had to disregard from the PIP had decreased. And finally, the MIG (the amount Mr C could keep from his income) had stayed the same since 2015.
43. I have further investigated the way the Council assessed the DRE. Firstly, it should be noted that there was only a small difference (£7.30) in the DRE the Council allowed in 2015 (£32.20) and 2020 (£25). The DRE decrease of £7.30 was not the main reason for the increase in contribution. Even if the Council had allowed the same DRE as it did in 2015 (£32.30), Mr C would have still had to make a contribution of £32.35 per week. It was the change in income, not the DRE that was the issue.
44. I find no fault in the way the Council assessed the laundry costs and heating costs.
45. I note that Mr B said he had higher electricity costs because of the daily laundry and drying. Mr B said the electricity cost was £2 a day. I presume this was an additional cost on top of his usual electricity use. Unfortunately, Mr B did not provide evidence of electricity use in his appeal to the Council so I cannot say there was fault in the Council not considering this.
46. Mr B said in his appeal that his yearly energy costs were £1,500. It was not clear from Mr B’s appeal letter whether this included gas heating only or gas and electricity. The Council assumed £1,500 was the cost of the gas heating only. The Council then compared this with the average costs of gas heating for a similar property (there are comparison tables for this) and said it was lower than the average. I find no fault with this approach as that is the approach most councils take.
47. However, I note the Council’s policy says a person can ask for a review of the financial assessment. Mr B may wish to do so and provide evidence of the costs that he has raised with the Ombudsman.
48. Similarly, the cost of paying the agency for administering the direct payments may be a DRE, but I cannot see that this was raised in the appeal so I cannot say there was fault in the Council’s consideration of this. Mr B may wish to raise this in his review.
49. I have also considered Mr B’s complaint that the Council officer was rude to him on 4 February 2020. There is no recording of the telephone call, but I have considered the note the officer made of the Council. I have not found evidence of fault by the officer in respect of the call.
50. Mr B also said that the Council had not responded to his letters from March and May. In those letters Mr B questioned whether the Council could charge if the package of care was also funded by the NHS. The answer is that it is not unusual for a care package to be partly funded by the Council and partly by the NHS as some needs may care related and some health related. I am not sure whether the Council did not receive the letters, or whether the letters went astray within the Council, but I agree with Mr B that, if the Council received the letters, it should have responded.
51. Mr B also said the Council was discriminating against disabled people by charging them a contribution. The regulations and guidance allow councils to charge a contribution from people on benefits, including people with a disability. However, a recent court case has criticised how a different council considered the impact of its charges on severely disabled people, therefore we would expect councils to review their charging policies in line with this case. The Council has confirmed it is doing so. The outcome of this review is not known yet, but it may affect its future charging policy.

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Final decision

52. I have completed my investigation and have not found fault by the Council.

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Investigator's decision on behalf of the Ombudsman