Summary: Mrs X complains on behalf of Miss Y that the Council has not properly considered disability related costs relating to Miss Y’s support needs. The Council was at fault because it has not been clear about how it has calculated disability related costs and did not consider Miss Y’s need for support properly. Miss Y has spent money for her carer to support her. The Council has agreed to explain disability related costs decisions in more detail. The Council should also review Miss Y’s needs.

The complaint

1. Mrs X complains on behalf of her daughter Miss Y. Mrs X says the Council acted wrongly by not including in Miss Y’s disability-related expenditure the cost of Miss Y’s carer participating in Miss Y’s dance exercise and water exercise classes. As a result, Miss Y must either bear this cost or feel conspicuous if her carer accompanies her without participating in the classes with her.

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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 question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. 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

6. I have spoken to Mrs X about her complaint and considered the information she has provided to the Ombudsman. I have also considered the Council’s response to my enquiries.
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

8. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The scheme must comply with the principles in law and guidance. If a person incurs expenses directly related to any disability he or she has, the Council should take that into account when assessing his or her finances. This is known as ‘disability-related expenditure’ (DRE).
9. The Council has a Disability Service Initiative which offers concessionary memberships to service users and carers through the Council’s One card. If authorised by the Council a concession One card can be issued to the service user and well as a carer or buddy card.

What happened

10. Miss Y held a Council One card allowing her to access Council leisure facilities at a reduced cost. She also had a carer’s card which allowed her carer to access the facilities with her, also at a reduced cost.
11. In 2018, the Council agreed an arrangement with Mrs X for Miss Y and her carer to be able to pay an annual fee for the One cards, which further reduced the cost to them. This arrangement was outside the Council’s disability scheme.
12. Miss Y has disabilities. The Council assessed Miss Y needs support to enable her to take part in activities to prevent social isolation and maintain her emotional and physical well-being. Mrs X reports Miss Y enjoys taking part in dance exercise and water exercise classes at a Council-run leisure centre. Miss Y’s disabilities prevent her going to these activities alone so the Council’s support plan and personal budget includes the cost of a carer’s time accompanying her.
13. Mrs X corresponded with the Council numerous times about Miss Y’s needs. The Council agreed it sent Mrs X forms regarding its One card disability scheme which it should not have done.
14. Access to the classes through the One card cost Miss Y £235 a year. The Council initially did not agree to include this cost as DRE, either for Miss Y or her carer.
15. Mrs X appealed, and the Council did not uphold her appeal. The Council then later reviewed the appeal decision and agreed to include the cost of Miss Y’s access to classes in her DRE. However, the Council did not treat the cost of the carer’s participation in the classes (also £235 a year) as DRE.

Analysis

16. Mrs X’s agreement with the Council to pay an annual fee for a One card is outside the disability scheme. Mrs X’s complaint is therefore about whether the cost of a similar One card for Miss Y’s carer should be counted as DRE.
17. The Council says Mrs X did not challenge the decision in 2018 that carer’s costs were not included as DRE.
18. The most recent review of Miss Y’s care needs assessment took place in September 2018. It says her current support plan enables her to engage in activities that maintain her emotional and physical wellbeing. Emails between the Council and Mrs X show this review was not completed properly because it was signed off in February 2019. The review also contains an inaccurate date and Mrs X says Miss Y’s age was recorded incorrectly. The Council says this review was signed off by a practitioner in December 2018 and November 2019.
19. The review contains no reference to Miss Y’s needs in relation to one to one assistance in classes prior to 2018. The review is not clear whether Miss Y requires or does not require one to one support during fitness classes from 2018. Mrs X says she raised this as part of the assessment review, but no new needs were recorded. The officer who completed the review has now left the Council. There is insufficient evidence for me to be able to determine what was raised and considered in the review in September 2018 and I am therefore unable to investigate this further
20. The Council produced an independence plan for Miss Y in May 2019. Miss Y’s independence plan says she has a personal budget to enable her to purchase day services and personal assistant support to enable her to access fitness classes and community activities. The plan states Miss Y requires “evening support for fitness activity”. Miss Y commented that it is “important I am able to continue to be supported with my activities and fitness classes”.
21. The Council accepts in its appeal review letter dated 26 November 2019 that Miss Y has an identified eligible social care need for support to enable her to engage in services and activities. It says her needs are met by a support worker accompanying her to go there and that the support worker chooses to participate in activities alongside Miss Y.
22. The Council says it does not pay the cost of support workers participating in activities alongside an individual, unless this is identified as an eligible social care need in their Care Act Assessment. The Council also says, “based on the professional assessment of her care and support needs, Miss Y does not however require support to engage in the actual activity of a class.”
23. Mrs X appealed against the Council’s decision not to include the cost of a One card for Miss Y’s carer’s as DRE in October 2019. I have seen Mrs X’s appeal form that shows she told the Council that Miss Y’s care plan stated Miss Y needed one to one support in classes.
24. The wording in Miss Y’s needs assessment and independence plan is not specific. This has led to different interpretations by the Council and Mrs X regarding whether the cost of Miss Y’s carer’s One card should be considered DRE. I am unable to find fault simply because Mrs X does not agree with the Council’s decision.
25. Mrs X has provided copies of historic documents which state Miss Y required one to one support during fitness classes in 2013 and 2015.
26. The Council has considered the 2018 review and the 2019 independence plan when it made a decision about Miss Y’s DRE. However, the Council has provided no further evidence to show how it has taken into account the documents from 2013 and 2015 or Mrs X’s statement in her later appeal submission that Miss Y does require one to one support, either as part of the appeal decision dated 26 November 2019 or its review of that decision dated 9 December 2019. This is fault by the Council. Mrs X is uncertain whether Miss Y’s DRE has been calculated correctly.
27. Between October 2019 and December 2019, the Council has sent Mrs X a number of different letters and emails with conflicting information about the level of DRE that it has calculated Miss Y is entitled to from November 2019. It has not been clear to Mrs X precisely what has been considered as DRE on each occasion, or on what basis that decision has been made. Evidence from the Council’s response to Mrs X’s appeal, the DRE assessments, information provided by Mrs X and the Council’s response of 9 Dec 2019 shows the Council altered its position about the amount of DRE allowed numerous times. Some of the changes were made as a result of additional information provided by Mrs X. However, the Council has been unable to provide evidence to show this was the reason for all the conflicting information. This is fault by the Council. Mrs X has been confused and distressed by the conflicting information.
28. During the course of my investigation the Council has said that it, “will develop a formal DRE decision letter, and this will be sent to the individual or their representative (along with the revised financial assessment) to fully explain in writing the DRE decision and confirm how the DRE allowance made in the financial assessment has been calculated.” I consider this to be an appropriate remedy for part of the injustice I have found.
29. The next review of Miss Y’s needs was scheduled to take place in May 2020. This is now overdue because of delays due to Covid19. The delay is not fault by the Council.

Agreed action

30. To remedy the injustice caused by the fault I have identified the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X and Miss Y.
• Undertake the planned review of Miss Y’s needs. This should include a specific reference clarifying whether Miss Y requires one to one support during activities or not.
• If Miss Y is found to require one to one support during activities as part of the planned review, the Council should pay Miss Y £235 in respect of the cost of her carer’s One card for the past year.
• Provide evidence to the Ombudsman to show it has developed and is using the DRE decision letter to explain how DRE allowances have been calculated.

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Final decision

31. I have found fault by the Council because it did not provide clear information about disability related costs or consider Miss Y’s need for support properly. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman