Summary: Ms Y complained on behalf of Mr X that the Council assessed Mr X’s disability related expenditure (DRE) incorrectly. She also complained the Council failed to acknowledge or adequately address her complaint within reasonable timescales. Ms Y said this matter caused Mr X distress and financial loss. The Council was at fault when it failed to review whether costs Mr X incurred during a leisure trip in 2018 could be considered DRE. The Council was also at fault when it failed to respond to Mr X’s complaint within a reasonable timescale, causing Ms Y to spend time chasing the Council for a response. The Council has agreed to review Mr X’s costs, make a payment of £100 to Mr X and remind its staff of the importance of dealing with complaints within a reasonable timescale.

The complaint

1. Ms Y complained on behalf of Mr X that the Council incorrectly assessed his disability related expenditure (DRE) and did not respond to the complaint she raised about this within the required timescales.
2. Ms Y said this situation caused Mr X distress and he incurred legal costs chasing the Council for a response to his complaint. Ms Y would like the Council to pay these legal costs.

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The Ombudsman’s role and powers

3. 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)
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 made enquiries of the Council and considered the information it provided this included correspondence shared between Ms Y and the Council and, Mr X’s care and support plan.
6. I wrote to Ms Y and the Council with my draft decision and gave them an opportunity to comment. I considered their comments before I made the final decision.

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What I found

The Council’s policy on charging and DRE

7. The Council carries out a financial assessment to determine whether a person needs to pay towards the cost of their care and if so, how much this will be.
8. During the assessment, the Council will consider whether the applicant has any Disability Related Expenditure (DRE). DRE is additional living costs a person may have that arise from a disability or long-term health condition.
9. The Council’s policy sets out examples of what it considers as DRE such as community alarm systems, privately arranged care services, washing powders and special clothing and bedding. It is the responsibility of the applicant to tell the Council if they believe they have DRE.
10. The Council applies a standard rate of £15 a week for people eligible for DRE. If someone wants to claim more than £15, the Council will ask for evidence. This is proof of the cost, such as bills, invoices, receipts, contracts, bank statements etc. The Council will consider the DRE being declared and determine which costs are considered eligible.

Law

11. The Care Act 2014 says councils must assess anybody in their area who appears in need of care services. Following an assessment, councils must decide which needs are eligible for their support. If the council provides support, it must produce a written care plan. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
12. The council can charge an adult for the care and support specified in the care plan. The council completes a financial assessment to determine the maximum weekly contributions it will ask the person to pay. The council must consider certain types of income when completing the financial assessment. That includes benefits such as the daily living component of Personal Independence Payment (PIP) and Employment Support Allowance (ESA). It must disregard other income such as the mobility element of the PIP allowance.
13. After charging, a person must be left with the minimum income guarantee (MIG) to pay for their daily living costs such as food, rent and utilities. The amount is dependent on a person’s age and personal circumstances and is set by Government.

The Council’s Complaints Policy

14. A person who is unhappy with the service they have received can speak to the Council’s Adult Social Services Complaints Team.
15. The complaint will be investigated by a manager and they will write to the complainant with their findings. If the complainant remains unhappy they can contact the Ombudsman.

What happened

16. Mr X has a learning disability and is autistic. Mr X lacks capacity to make decisions about his care so his parents make decisions on his behalf. Ms Y is Mr X’s legal representative and takes care of his day-to-day affairs. Ms Y makes a charge for this service.
17. In May 2018, the Council carried out a financial assessment for Mr X. It decided he was eligible for DRE and awarded him the standard £15 a week.
18. Mr X’s care and support plan stated that the Council should contribute £461.46 per week to cover the cost of Mr X attending a day centre 4 days a week.
19. On 12 October 2018, Mr X’s parents contacted the Council to explain that Mr X was attending a winter holiday with the day centre. They asked whether the Council would cover the costs as part of Mr X’s respite allowance. The Council went on to discuss other issues raised by Mr X’s parents but did not respond to this query.
20. In February 2019, the Council asked Ms Y to provide evidence if Mr X had DRE costs above the £15 per week threshold. The Council says it did not receive any evidence.
21. In January 2020, Mr X moved into residential accommodation and the Council stopped his DRE.

Mr X’s complaint

22. On 9 March 2020, Mr X’s family moved him from the residential accommodation and asked the Council to reinstate his care package. The Council reinstated the £15 per week DRE. Mr X’s care and support plan outlined that he was to receive funding for one-to-one support to engage with recreational activities.
23. On 1 April 2020, Ms Y complained to the Council on Mr X’s behalf. She said:
• Mr X’s DRE should be increased to £147.37 a month to reflect the costs of Mr X attending a care centre and taking part in the activities there. Mr X’s parents said the care centre would not allow Mr X to attend the care centre if he did not take part in these activities.
• The Council should increase Mr X’s DRE by between £5 and £30 a week when he incurs extra costs at the weekend, such as having to hire a support worker.
24. Ms Y contacted the Council on 10 June 2020 to chase for a response. She also chased for a response the following month. In July 2020, Mr X moved to another borough and ceased to come under the Council’s remit.
25. On 27 July 2020, the Council sent Ms Y a holding email stating it would not be awarding Mr X further DRE. Ms Y responded on the same day and queried why the Council had not properly addressed Mr X’s claim for DRE or confirmed the timescales for when it would be addressing Mr X’s complaint. The Council responded to Ms Y on the same day regarding another issue but did not clarify its position on Mr X’s DRE.
26. On 31 July 2020, Ms Y chased the Council for a response to the complaint.
    On 4 August 2020 the Council referred Ms Y to a member of staff but did not clarify which parts of the complaint it was addressing.
27. On 14 September 2020, Ms Y forwarded the Council details of a holiday Mr X took in December 2018, showing he paid £300 for a carer to accompany him. He also paid £90.47 for insurance, which Mr X’s parents said was a higher amount than he would have paid if he were not disabled. Ms Y also forwarded an estimated weekly expenditure drawn up by Mr X’s parents and receipts for shopping and activities Mr X had enjoyed at the day centre he attended.
28. The Council responded to Ms Y on 15 September 2020, advising that it would need more time to investigate the information she had provided and could not deliver a response until 2 October 2020.
29. On 2 October 2020, the Council wrote to Ms Y and stated the following:
• The Council had reviewed government guidance and it did not consider Mr X’s recreational activities to be DRE. The Council said Mr X’s care and support plan outlined the cost of the support provided by the Council for Mr X to socialise and engage with the local community and it was up to Mr X and his parents to work within this budget or demonstrate why the activities were an unavoidable cost.
• The Council did not consider any costs Mr X incurred during the holiday he took in December 2018 to be DRE because no agreement was in place with the adult social care team for the family to seek recompense for personal care through a DRE application. As Mr X’s parents had made their own private arrangements in taking the holiday, it was up to them to bear the costs.
• The Council had not received an explanation or evidence for the costs Mr X incurred during weekend activities which indicated he had incurred these costs as a direct result of his disability.
30. The Council maintained it had correctly assessed Mr X’s DRE but would agree to reduce Mr X’s weekly contribution between 8 March and 19 April 2020 from £103.55 to £25.70. The Council said it made this offer in light of the additional costs Mr X incurred when he left the care home. The Council also offered to extend the repayment period. The Council concluded the letter by apologising for the delay in responding to the complaint, stating that the COVID-19 pandemic had impacted its resources.
31. Ms Y referred the complaint to the Ombudsman at this point. Mr X’s parents confirmed that the winter holiday was not privately arranged, and they did not accompany Mr X. Further, the Council failed to respond to requests made by them and the day centre to provide funding for the trip. In response to these comments, the Council said it does not contribute towards the cost of holidays but should have considered paying towards the usual cost of care provided by the day centre as set out in Mr X’s care and support plan at the time. The Council said it does not hold record of Mr X’s parents asking it to consider the costs incurred during this trip as DRE but confirmed it is willing to review this if it receives evidence of this contact.

Findings

32. Ms Y complained the Council incorrectly assessed Mr X’s DRE. It is not the Ombudsman’s role to decide whether Mr X’s DRE is correct, this is the Council’s job. It is our role to assess whether the Council acted with fault in making its decision.
33. The evidence shows Mr X’s family provided the Council with information regarding additional costs they believed Mr X incurred due to his disability and which exceeded the standard £15 per week DRE. The Council considered this information and provided clear, detailed reasons for why the costs were not directly related to Mr X’s disability. The Council was entitled to make this decision and there was no fault in the way it was made.
34. However, the Council did not respond to information it received regarding a trip Mr X took with the day centre and the costs he incurred. This is fault. The Council is required by its policy to consider DRE declared and whether there are any eligible care costs. It is not possible to say whether Mr X suffered an injustice because of this fault however it is likely Mr X’s family have been caused inconvenience by having to chase the Council for a response.
35. Ms Y referred the complaint to the Council in early April 2020 and did not receive a response until the beginning of October 2020, six months later. Whilst acknowledging the COVID-19 pandemic most likely contributed to the delay in dealing with Mr X’s complaint, this is still excessive. The Council also failed to properly respond to several of Ms Y’s queries. This is fault.
36. Because of the Council’s delay, Ms Y had to spend time chasing the Council. The Council has apologised for the delay. However, it should take further action to address how it deals with complaints.

Agreed action

37. Within one month of the date of the final decision, the Council has agreed to make a payment of £100 to Mr X to acknowledge the length of time it took to respond to his complaint.
38. Within three months of the date of the final decision, the Council has agreed to confirm it has issued a reminder to staff to deal with complaints within a timely manner.
39. Within three months of the date of the final decision, the Council has agreed to review the costs Mr X incurred during the Winter 2018 trip and decide whether it has fairly applied care and support costs during this period.

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Final decision

40. There was fault when the Council failed to respond to a request for a DRE assessment. The Council was also at fault when it failed to respond to Mr X’s complaint for several months. I have made recommendations for the Council to address this and the Council has agreed to them. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman