Summary: Mrs X complained the Council failed to properly consider whether some of her son’s outgoings were disability related expenses for the purpose of a financial review. We found there was fault. We recommended an apology, a payment to reflect the time and trouble Mrs X spent bringing the complaint, and a review of the charges applied to her son.

The complaint

1. Mrs X complains the Council failed to properly consider her son’s Disability Related Expenses (DRE) when assessing the financial contribution he should make towards his care. In particular, Mrs X complains that much of her son’s travel related expenses should have been regarded as disability related. She says the amount of the charge would leave her son in debt, and the Council failed to properly consider the affordability of the charge. She complained the decisions would leave her son in financial hardship.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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 considered the complaint made by Mrs X and the correspondence she provided. I asked the Council for information and I considered its response to the complaint.
6. As Mrs X originally challenged the situation in early 2018, but the correspondence about the issue continued into 2019 and 2020, so we did not consider this was a late complaint.
7. Mrs X 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

Care and Support Statutory Guidance

8. When someone has been found to have eligible care needs, councils are required to carry out a financial assessment to determine whether they need to pay a contribution towards their care.
9. Where a council decides to make a charge, it must follow the Care and Support (Charging and Assessment of Resources) Regulations and have regard to the Care and Support Statutory Guidance. 
10. Section 8 of the guidance deals with charging and financial assessment. The guidance states that someone must have enough money (after charges are deducted) to meet their daily living costs such as rent, food and utility bills. The regulations refer to this a Minimum Income Guarantee (MIG). The amount of MIG is set out in the regulations.
11. When assessing someone’s income, a council may consider most benefits as income. However, some must be disregarded. These include the mobility component of Disability Living Allowance (DLA) or Personal Independence Payments (PIP).
12. Where someone receives disability related benefits, a council should make an assessment and allow someone to keep enough money to cover the cost of meeting necessary Disability-Related Expenses (DRE).

The Complaint

13. Mrs X complains on behalf of her son, referred to in this statement as Y. The crux of her complaint is that the Council failed to properly take account of DRE that he incurred. She considered the Council had not assessed her son’s specific circumstances when reaching its decisions.
14. The key dispute was about Y’s travel expenses. Y’s care plan stated that he needed the support of a carer to help him make use of the local community, including public transport and recreational facilities. It stated Y needed support to avoid confrontational situations which could arise in the community due to Y’s mental health condition.
15. The care plan stated Y chose not to use public transport to prevent confrontational situations. It stated, as a result, Mrs X had purchased a car which Y’s carers could use to take Y to community facilities and appointments.
16. Mrs X first challenged the Council’s financial assessment shortly after it was done in April 2018. She continued to challenge the decision in 2019 and engaged a solicitor to advise her.
17. At the time of Mrs X’s complaint to us, Y received the mobility component of DLA which was £23.20 per week. While accepting Y was obliged to use this towards his travel expenses, Mrs X’s solicitor stated that Y incurred travel costs of around £36.50 per week. Her solicitor argued that Y’s travel costs were incurred directly because of Y’s disability. So, he stated the travel costs over and above £23.20 should be considered DRE.
18. In response, the Council stated the cost of running a car in itself was not considered a DRE, as most people had a car and incurred running costs. The Council stated Y’s PIP mobility payment was to support Y’s mobility costs. The Council suggested Mrs X should apply to have Y’s PIP payments reviewed to see if he qualified for the higher rate. This would then meet all of his travel costs.
19. In July 2020 the Council responded to Mrs X’s formal complaint. It set out how it calculated Y’s financial contribution. The Council reiterated that Y’s travel costs should be met by Y’s PIP mobility payment. The Council’s response did not address why it did not consider the present travel costs, over and above his PIP were not DRE. The Council noted that the correct, age related MIG, of £151.45 had been allowed as part of the financial assessment for Y’s essential household costs.
20. In response to further contact from Mrs X’s solicitor the Council stated it had followed all the appropriate guidance and referred Mrs X to us.
21. When Mrs X complained to us in August 2020 she stated that her concern was that the Council had not considered her sons specific circumstances. She also argued the amount it requested was not affordable. She stated the money was not there and Y could not pay it.

Was there fault by the Council

DRE

22. We found there was fault by the Council. The care act statutory guidance says the Council must leave you with enough money to pay for necessary disability-related expenditure to meet any needs which are not being met by the local authority. The guidance includes a list of potential costs which should be considered DRE. This includes ‘other transport costs necessitated by illness or disability, over and above the mobility component of DLA or PIP’. It also notes that the list is not exhaustive and councils should consider any reasonable additional costs as potentially DRE provided they are directly related to a person’s disability.
23. When the Council considered Mrs X’s correspondence and that from her solicitor, it stated most people had the expense of running cars. It failed to consider Y’s specific circumstances and whether his need for the car was necessitated by his disability. It also stated repeatedly that Y’s travel costs should be met by Y’s PIP mobility payment. While the PIP payment should be used to pay for transport costs, the Council failed to explain why it did not consider Y’s transport costs over and above his PIP payment were not DRE. This was fault.
24. Since Mrs X’s original complaint, Y has been granted PIP mobility payments at the higher rate. These now cover Y’s transport costs in full. However, the Council should review its previous decisions between April 2018 and when Y was granted the higher rate of PIP mobility payments to determine whether Y’s transport costs, over above the PIP he received at that time, should be considered DRE.

General Affordability

25. In her complaint to the Ombudsman, Mrs X also stated that the charge the council was asking Y to pay was unaffordable as his income would not cover his outgoings and his contribution to his care. She considered this was wrong.
26. Aside from the fault we found in the way the Council dealt with transport costs that could be DRE, we found no fault in the way the Council went about the financial assessment. The Care and Support (Charging and Assessment of Resources) Regulations set out the amount that should be allowed for general living expenses, as a MIG. The Council has included this sum in its calculations.

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Agreed action

27. Within four weeks of my final decision the Council should:
• Apologise to Mrs X and pay her £150 to recognise the time and trouble she has been put to in bringing her complaint.
• Review its previous decisions about Y’s financial assessment between April 2018 and when Y was granted the higher rate of PIP mobility payments. This is to determine whether Y’s transport costs, over above PIP he received at that time, should be considered DRE. The Council should take into account Y’s circumstances and write to explain its review decision to Mrs X. If it considers some or all of Y’s travel expenses should have been considered DRE, it should apply a backdated credit or make a refund to Y as appropriate.

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Final decision

28. There was fault by the Council.

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Investigator's decision on behalf of the Ombudsman