Summary: The Council was at fault. It failed to review Ms X’s care and support plan to see if it needed revising. This means the financial assessment of her disability expenses was based on out-of-date information about her activities. The fault caused avoidable uncertainty and time and trouble complaining. The Council will apologise, complete a review of the care and support plan, reconsider her disability expenses and backdate them where appropriate.

The complaint

1. Ms X’s representative complained the Council did not properly apply guidance when considering her disability related expenditure (DRE) when assessing the charge for her care. She also complained the Council asked her to delay complaining to the Ombudsman to enable a review of her needs assessment/care and support plan and fresh financial assessments to take place, but these have still not been completed.
2. The representative said this caused Ms X a financial loss because her charge is higher than it should be

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The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
4. The Council has not responded to the second part of the complaint at, but it is aware of the matter and has not completed the fresh needs assessment or new financial assessment. It would be unreasonable to give the Council a further opportunity to respond because there has already been significant delay which may have caused injustice to Ms X.
5. 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)
6. 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

7. I considered the complaint to us, the Council’s response to the complaint, its response to my enquiries and documents described later in this statement.
8. Ms X, those representing her 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

What should have happened

9. Councils have the legal power to charge for care. If they do so, they must carry out an assessment to determine how much the person should pay (a financial assessment).
10. Disability Related Expenditure (DRE) are expenses that a person has to pay connected to their disability. They are an allowance in a person’s financial assessment and reduce their weekly charge. DRE can include specialist items like wheelchairs. They can include extra heating or laundry costs, equipment and aids and regular payments such as wheelchair insurance and gardening costs. Statutory guidance says:
• A council must leave a person with enough money to pay for necessary DRE to meet needs that are not being met by the local authority
• The care and support plan may be a starting point for considering DRE, but councils need to be flexible. DRE should not be limited to what is necessary for care and support. (Care and Support Statutory Guidance Annex C, 39 and 41)
11. Where a council agrees a person has care and support needs which meet national eligibility criteria, it must issue them with a care and support plan which sets out their needs, explains which is an eligible need and says how much funding the person is entitled to. It should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
12. Statutory Guidance explains a council should review a care and support plan at least every year, on request or in response to a change in circumstances. The purpose of a review is to see how a care and support plan has been working and to decide if any revisions need to be made to it. The council should act promptly after receiving a request for a review. (Care and Support Statutory Guidance, Paragraphs 13.19-21 and 13.32)
13. A council should revise a care and support plan where circumstances have changed in a way that affects the plan. Where there is a proposal to change how to meet eligible needs, a council should take all reasonable steps to reach agreement with the adult about how to meet those needs. (Care Act 2014, sections 27(4) and (5))

What happened

14. Ms X has a learning disability and autism. She is eligible for care and support and receives a direct payment (a monetary payment) which a family member uses to pay for her care and support to meet her social care needs.
15. The Council has given me copies of two care and support plans dated October 2019 and November 2020. They are identical apart from the 2019 version is longer and includes a risk assessment. The plans noted Ms X attended college three days a week and was doing a horse course and she volunteered at a clinic and sensory centre one day. She also did swimming, gym and dance. The assessor’s view is recorded and Ms X’s desired outcome as ‘Ms X to access courses and training and activities to improve her physical and mental well-being’
16. The funding in both care and support plans is:
• £100 a week for personal assistant (PA) costs (10 hours)
• On costs for PA: £31
• Transport: £73
• Activity costs for Ms X and the PA: £105
17. The Council carried out a financial assessment in June 2021. Ms X’s representative (Mr Y) was unhappy with the charge which he felt was unaffordable.

Appeal correspondence

18. Mr Y appealed Ms X’s charge and asked for items to be considered as DRE. I have summarised the Council’s responses in July and October 2021 below:
19. In July, the Council said:
• Ms X’s care and support plan had funding of £105 a week for activities and an allowance for transport costs to activities. Horse riding and dance were mentioned
• The notes in the financial assessment said the direct payment was used for funding for gym membership, swimming, day centre, and one day a week riding, dance, trampoline and insurance.
• Clothing for Ms X to take part in activities (gym clothes, riding clothes and equipment) is not special equipment and so is not a DRE as anyone taking part in the activities would need it. They are a normal expense and not a disability one. The same applied to holidays
• Regarding the massage the Council would need evidence the treatment was necessary, beneficial and not available on the NHS. This needed to be from a doctor
• The Council would include a replacement helmet as a DRE.
20. The amended financial assessment in August 2021 said “since Ms X is no longer in college, the family have been exploring new possibilities and have increased her activities. Her full review did not happen because of COVID-19. A full review needs to take place to discuss what can be included in the direct payment. It is for this reason that I am unable to include as disability expenses the many activities that have been asked for as this review has not yet taken place and I am unable to confirm which of these activities may be covered in the care plan:
• £60 a month for stable and riding work at farms
• £10 a week for trampolining
• £40 massage
• £20 a week for taxi to voluntary work at a charity shop
• Two days a week riding course

All these options will need to be explored in the care planning process”

21. Information from Ms X’s GP said massage was not available on the NHS. The finance officer asked the GP to say if massage was “necessary and/or beneficial in the treatment/control of her symptoms.’
22. The GP provided a letter from the NHS sensory clinic. The NHS sensory clinic said Ms X had sensory difficulties affecting her skills. She needed opportunities for physical activities which provided sensory stimulation including trampolining, riding, swimming and massage. These activities provided Ms X with movement and sensory input her body needed to organise and orientate itself.
23. The Council wrote to Mr X in October 2021 saying:
• Information from the GP was that massage therapy had not been prescribed to meet a particular condition. The GP provided information from the sensory clinic which said it was important for Ms X to engage in ‘activities offering vestibular and proprioceptive stimulation’ including trampolining, riding, swimming and massage. Massage had been suggested as an activity not as a prescribed medical treatment therefore the Council would not allow it as a DRE.
• Holidays and riding equipment were not allowable DRE. They were not in the care and support plan as they were not expenses to meet the cost of specialist items needed to meet an adult’s disability
• The finance team had contacted the social care team asking for it to review Ms X’s care and support plan.
24. The parties agreed there would be a review of Ms X’s social care needs/care and support plan and a meeting took place with Ms X, her representative and a social worker in December 2021. The Council told me the social worker left the department without writing the review up. The Council told me the case was allocated to another social worker in July 2022 who contacted Ms X’s representative who wanted to take legal advice and he then went into hospital. So at the time of writing this statement, the review/re-assessment has not been done.
25. Ms X’s representative complained to us in June 2022.

Findings

The Council asked her to delay complaining to the Ombudsman to enable fresh needs and financial assessments to take place, but these have still not been completed.

26. There is fault by the Council. When assessing Ms X’s DRE, it relied on a care and support plan from 2019 which had not been reviewed and did not reflect Ms X’s current activities. For example, she no longer attends college. This means there is a risk the financial assessment relied on out-of-date information which would inform consideration of her DRE. The Council did not act in line with Care and Support Statutory Guidance which requires a yearly review of the care and support plan as a minimum. The finance officer noted in the amended financial assessment in August 2021 that a review was overdue and they could not consider some of the items Ms X’s requested until he had confirmed with the social care team whether they would be included in her care and support plan.
27. It was fault of the social worker not to write up the re-assessment/review that took place at the meeting in December 2021. A review has still not been completed at the time of writing this statement. I note Ms X’s representative has been unwell recently, but the majority of the delay is the Council's.
28. The delay in completing the review of the care and support plan caused avoidable uncertainty about Ms X’s DRE and social care funding and time and trouble complaining.

The Council did not properly apply guidance when considering DRE

29. The Council’s consideration of DRE was inflexible and so not in line with Annex C of Care and Support Statutory Guidance. In relation to massage, there is nothing in Annex C which says DRE has to be prescribed medical treatment or necessary and beneficial. CSSG emphasises flexibility and stresses councils should not limit DRE to what is necessary for care and support.
30. In relation to items of clothing, holidays and riding competition expenses, I am satisfied the Council was entitled to reject these as it considered them not to be disability expenses, rather, items that the public generally would be required to purchase if they took part in the specified activities.
31. The finance team relied on an out-of-date care and support plan when considering DRE as I have set out above. This may have affected the decisions on DRE as the care and support plan is one source of relevant information for the financial assessment.

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Agreed action

32. Within two months of my final decision, the Council will do the following:
• Apologise to Ms X and Mr Y for the avoidable uncertainty and time and trouble complaining
• Review the care and support plan to see whether any revisions are needed
• Reconsider Ms X’s DRE based on an up-to-date care and support plan
• If the outcome is to award any of the items Mr Y requested as DRE during his appeal in 2021, the Council should backdate the award to the date of his request.
33. The Council should provide us with written evidence it has complied with the above actions.

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Final decision

34. The Council was at fault. It failed to review Ms X’s care and support plan to see if it needed revising. This means the financial assessment of her disability expenses was based on out-of-date information about her activities. The fault caused avoidable uncertainty and time and trouble complaining. The Council will apologise, complete a review of the care and support plan, reconsider her disability expenses and backdate them where appropriate.
35. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman