Summary: Ms C complained the Council did not consider properly her son’s disability related expenses when deciding the amount he must contribute towards the cost of his care. Ms C said this means her son is not getting the support he needs and his mental health has deteriorated. We have found fault in some of the Council’s communication and avoidable delay but consider the agreed action of an apology and symbolic payment provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Ms C, complains on behalf of her son, Mr X, that the Council did not consider properly his disability related expenses due to his autism, dyspraxia and severe dyslexia when deciding the amount he must contribute towards the cost of his care. Ms C says this means her son is not getting the support he needs and his mental health has deteriorated.

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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. 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. 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

5. I read the papers provided by Ms C and discussed the complaint with her. I have also considered information from the Council. I have explained my draft decision to Ms C and the Council and provided an opportunity for comment.

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What I found

Background and legislation

Charging for social care services: the power to charge

6. 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 places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the 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)

How to assess; Thresholds; DRE

7. Where a council has decided to charge for care, 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 cost it incurs to meet a person’s assessed eligible needs.
8. People receiving care and support other than in a care home need to keep 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.

Disability Related Expenditure

9. 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.

Key events

10. The following is a summary of key events. It does not include everything that happened.
11. Mr X made a request for a social care assessment at the end of January 2022.
12. The Council completed an initial financial assessment for Mr X in March 2022. This set out the maximum weekly amount Mr X had been assessed as able to pay towards his care costs was £130.25.
13. The Council completed the care assessment in April. Subsequent financial assessments in April set out the maximum weekly amount Mr X had been assessed as able to pay towards his care costs as £134.51 and £134.52 respectively.
14. Ms C contacted the Council in May on behalf of Mr X about the outcome of the financial assessment and to ask it to consider various DRE items.
15. The Council wrote to Ms C at the start of June. It explained Mr X’s maximum contribution had been assessed as £134.52 per week and his care costs were less than this maximum weekly contribution which meant he would need to pay the full cost of his care. The Council noted even if some of the requested DREs were allowed there was a difference of over £40 before Mr X would see any reduction in his contribution. The Council went on to consider the list of requested DREs and explained most of these needed to be paid from the Minimum Income Guarantee but allowed a communication DRE of £2.28 per week. The Council sent an amended financial assessment and details of how to appeal the decision.
16. The amended financial assessment explained that based on Mr X’s current support plan he would still need to pay £91.69 weekly which was the full cost of his care. It was noted the amount may vary if the support received changed or if Mr X’s financial circumstances changed. The Council confirmed the maximum weekly amount Mr X had now been assessed as able to pay towards his care costs was £132.24.
17. Ms C appealed the amended assessment above. The Council’s Decision-Making Panel reviewed the matter in July and decided a social worker should review Mr X’s care needs assessment and some of the items listed in his appeal should be considered as part of his support package. The assessment was due to be completed before the end of September and the matter was due to come back to the October Panel meeting.
18. The Council completed the reassessment in September. The Council provided an amended care and support plan in October which set out an increased amount of 12 hours of PA support each week via a Direct Payment. There was a suggested outline of how the hours could be used to support Mr X but the intention was for them to be used flexibly. The plan noted Mr X privately funded cleaning and several items of disability related expenditure and wanted these to be considered when calculating his contribution towards his care costs.
19. The Panel considered the matter further at its November meeting and wrote to Mr X to notify him of the outcome at the end of November. This allowed DREs for bedding, laundry, clothing and water usage each week. It was also decided to allow a DRE towards the purchase of headphones and a keyboard once evidence of the purchases was provided. It was also agreed to consider a DRE towards energy once evidence of 12 month predicted usage was provided. The letter set out the right of further appeal to the Revisit and Review Appeals.
20. Mr X appealed the decision in February 2023. This explained the reasons why Mr X had not been able to provide a receipt for the purchase of his headphones and why he needed specific TV, game and music subscriptions.
21. The case was reviewed at the Revisit and Review meeting in May and the Council notified Mr X of the outcome in June. This agreed a DRE for the game application in addition to the previously agreed DREs and provided the reasons the remaining DRE requests had been rejected. It was noted no evidence had been provided for the headphone purchase.
22. In its response to the Ombudsman, the Council has accepted it could and should have provided information about how to obtain receipts from a particular supplier and more clearly explained its reasoning for its decision that requiring such receipts was reasonable. The Council also acknowledged that the responses sent following Panel meetings were focussed on itemised responses which could give the impression of a piecemeal rather than holistic approach.

My consideration

23. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether you disagree with the decision the organisation made.
24. I have found no evidence of fault in the way the Council considered the requests for DREs. In making its decisions, the Council took account of the relevant guidance and information from Ms C and Mr X. The Council followed the appropriate procedures when making its decisions and I cannot therefore criticise the decisions themselves.
25. However, I have found some of the Council’s communication to be poorly drafted and I consider this fault will have caused Ms C and Mr X a degree of uncertainty and inconvenience. I am also concerned about the overall time taken to complete the review process. Ms C raised her initial concern about the financial assessment and consideration of DREs in May 2022 but there was not a final outcome until June 2023. Even when considering the actions taken during this period by the Council, I consider there was avoidable delay. Given the eventual outcome I do not consider this has caused a particular injustice in terms of the financial assessment reached but it will have added to the uncertainty and inconvenience caused.

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Agreed action

26. The Council has agreed to take the following action within one month of my final decision to provide a suitable remedy:
1. provide a written apology to both Ms C and Mr X for the avoidable uncertainty and inconvenience caused by the poor communication and avoidable delay identified above; and
2. make a symbolic payment of £200 to Mr X to acknowledge the particular impact on him of the avoidable uncertainty and inconvenience.
27. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. I have completed my investigation as I have found fault by the Council but consider the agreed action above provides a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman