Summary: Ms X complained about the Council’s decision not to include certain disability related expenditure in its financial assessment, meaning she has to pay more for the cost of her care. We found the Council at fault for how it considered whether a private prescription for Ms X could be included as disability related expenditure. The Council agreed to apologise to Ms X and re-consider whether her private prescription could be included as disability related expenditure.

The complaint

1. Ms X complains the Council failed to include housing repairs and maintenance and medical cannabis as disability related expenditure.

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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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What I have and have not investigated

5. I have not investigated Ms X’s concerns that the Council failed to include her housing maintenance and repair costs as disability related expenditure as it has agreed to consider this should Ms X provide evidence of the payments and charges towards the roof of the property. It is open to Ms X to provide this to the Council for its consideration.

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How I considered this complaint

6. As part of this investigation, I considered the information provided by Ms X and the Council. I considered the relevant parts of the Care Act 2014 and the supporting statutory guidance. I sent a draft of this decision to Ms X and the Council and considered comments received in response.

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What I found

Law and guidance

7. 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)
8. 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.
9. 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. A council can allow people to keep more than the MIG. (Care Act 2014)
10. 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.
11. When meeting an adult’s needs for care and support a local authority may not provide healthcare services which are the responsibility of the NHS. (Care Act 2014 section 22, Explanatory note 158)

What happened

12. Ms X suffers from several medical conditions. As a result of these she is unable to take certain medications and has obtained a private prescription for medical cannabis for pain relief and mental health.
13. Ms X has eligible care needs. The Council carried out a financial assessment to decide how much Ms X should pay towards her care costs. As part of this assessment the Council decided Ms X’s private prescription for medical cannabis could not be included as disability related expenditure. The Council also decided Ms X’s repair and maintenance costs for the roof of her property could not be included as disability related expenditure.
14. Ms X complained to the Council about this in April 2024. Ms X explained that medical cannabis was not available to her on the NHS for pain relief so she had to pay privately for her prescription. Ms X provided the Council with documents which included a letter from her GP saying she used medical cannabis and this was not available on the NHS for pain relief. She also provided other medical letters from professionals treating her which outlined some of the alternative medications she had unsuccessfully tried to use in the past.
15. The Council responded to Ms X’s complaint in mid-April 2024. The Council said it would consider her housing repair and maintenance costs if she could provide evidence of the invoices for the work and evidence of the payments made. In relation to the medical cannabis, the Council said it would not make an allowance for prescribed medication as this fell under the remit of the NHS. The Council said that cannabis based medication could be prescribed on the NHS.
16. Ms X remained dissatisfied and complained to the Ombudsman.

Analysis

17. 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. Our role is to review the process by which decisions are made and if we find fault, to determine whether it caused an injustice to the individual complainant.
18. Following receipt of Ms X’s complaint the Ombudsman asked the Council to explain its rationale for deciding not to allow the costs of Ms X’s medical cannabis as DRE. The Council’s reasoning for this was that prescribed medication would come under the role of the NHS so it would not make an allowance for this. The Council explained its assessor had looked on the internet for information about cannabis based medications and found prescriptions could be given under limited circumstances. The Council also said the cost of the medication was not reasonable.
19. While the Council has explained how it came to its decision, I am not satisfied on balance that it has properly looked at the arguments Ms X has made. This is fault.
20. Firstly, Ms X has explained from the outset and provided medical evidence to show that she cannot obtain a prescription for medical cannabis on the NHS as she is using it for pain relief. In addition, the evidence the Council’s own assessor obtained suggests this too. The Council does not appear to have engaged with the evidence provided to support that the medication cannot be obtained via the NHS due to what Ms X uses it for.
21. Secondly, Ms X has provided evidence suggesting that to use other medication could leave her at risk of a serious bowel condition, which she suffered from previously. Ms X has also explained why she cannot use other medications. The Council does not appear to have considered these points.
22. Thirdly, the Council said, when explaining its rationale, for its decision that Ms X’s costs for the medication were not considered to be reasonable. I cannot see any explanation as to how the Council decided this or why it thought the costs were excessive.
23. Ms X cannot be sure the Council has properly considered her request to have her cannabis medication included as DRE. This is an injustice to Ms X.

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Agreed action

24. Within one month of my final decision the Council agreed to carry out the following:
• Apologise to Ms X for the way it considered her request for DRE.
• Reconsider whether Ms X’s prescription for medical cannabis could be included as DRE.
1. If the Council decides it should not include this as DRE, it should write to Ms X setting out its rational and reasons.
2. If the Council decides it should include this item as DRE, it should backdate this to when Ms X initially asked for it to be included as DRE.
25. The Council should provide us with evidence it has complied with the above actions.

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Final decision

26. I have completed my investigation and found there was fault by the Council which caused injustice to Ms X. The Council agreed to the above actions to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman