Summary: Mr X complained on behalf of Y. He complained about the way the Council made decisions about Y’s Disability Related Expenditure. He said this caused the family financial hardship. We found fault with the Council which caused uncertainty about its decision. The Council agreed actions to remedy the injustice.

The complaint

1. Mr X complained on behalf of his sibling, Y. He complained about the Council’s decisions in relation to disability related expenditure (DRE) for Y.
2. He said the Council refused to pay DRE that should be allowed according to the relevant guidance. He also said the Council failed to explain its decision making and was not transparent.
3. Mr X said this caused Y financial difficulties and caused the family distress, time and trouble trying to pursue this matter with the Council over a long period of time.

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The Ombudsman’s role and powers

4. 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 spoke to Mr X and considered the information he provided. I made enquiries with the Council and considered its response with relevant law and guidance.
8. Mr 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

Law and guidance

9. The Care Act 2014 is the legislation that sets out local authorities’ powers and duties in respect of social care. The Care Act 2014 is accompanied by a guidance document entitled Care and Support Statutory Guidance. This provides guidance for councils on how to meet their statutory duties under the Care Act.
10. Councils must carry out an assessment for any adult who appears to have a need for care and support. Decisions made by councils about whether someone’s needs are eligible for care and support must be made based on an assessment.

Disability Related Expenditure

11. 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. The Council can take a person’s capital and savings into account subject to certain conditions. 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.
12. Where a council takes disability-related benefit into account when calculating how much a person should contribute towards the cost of their care, it should make an assessment to allow the person to keep enough benefit to pay for necessary disability-related expenditure (DRE). The Care and Support Statutory Guidance sets out a list of DRE examples but 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. It is the Council’s discretion as to whether it accepts something is a DRE.

Council’s Disability Related Expenditure Guidance

13. The Council’s guidance document sets out its local approach to DRE. It gives examples of types of DRE.
14. The guidance document also contains a table of guideline costs listed for certain DRE. The table sets out the maximum amounts of DRE the Council will allow for certain items.

What happened

15. Y is an adult. They live with Mr X and other family members. They have severe autism and communication difficulties. They have a care and support plan.
16. In April 2021 the family complained to the Council about support for Y and delays allocating a social worker and assessing Y. The Council apologised for miscommunication and delays. It allocated a social worker who assessed Y.
17. In September the family emailed the Council because they were concerned about the financial assessment and the amount Y was charged for their care and support.
18. The Council responded in October. It said the social worker met the financial assessment team to discuss Y’s DRE. Following the meeting the social worker planned to meet Y in person to get a better understanding of their needs.
19. The social worker completed an assessment of Y in person in October and update their care and support plan. The Council completed a financial reassessment in November and backdated the decision to June 2021.
20. The family were unhappy with the Councils decisions about Y’s DRE. They contacted their local MP, who complained to the Council on their behalf. The family did not agree with what the Council did and did not consider to be DRE. The family was unhappy with the Councils decision in relation to whether the following were DRE or the amount it considered these costs to be:

• Residential trips.
• A security grill fitted at the family home.
• Y’s dietary needs.
• Personal assistance costs.
• Charge for a GP letter.

21. The Council provided a response to the family in January 2022. It said it would allocate another social worker and an occupational therapist to assess Y at home.
22. Following the assessment, the occupational therapist wrote to the family with their recommendations.
23. In April 2022 the family emailed the Council to say Y’s income had increased and they were now incontinent which increased their DRE. The Council completed an annual financial assessment review. The Council applied the reassessed charges from June 2022. It used its discretion not to backdate Y’s increased charges to the date their income increased, November 2019. It agreed to include the incontinence DRE subject to approval from adult social care.
24. The Council arranged to meet the family in May 2022 to discuss the financial assessment outcome. The family asked for the meeting to be rescheduled to August 2022.
25. The family remained unhappy with the Councils financial assessment and DRE decisions and complained to the Ombudsman.
26. In response to our enquiries the Council said:

“The Council has considered all the DRE which the family have requested in accordance with the guidance and in liaison with ASC and Y’s Support Plans. All financial assessments have been completed in a timely manner and all correspondence has clearly stated the contribution which is required to be paid towards the services provided”.

My findings

27. I found fault with the Council. The Council’s DRE policy and the Care and Support Statutory Guidance both say that each person should be assessed on their individual needs and circumstances.
28. The Council fettered its discretion when it refused to consider allowing a higher amount of DRE for some of Y’s expenses.
29. I asked the Council what DRE the family requested, what it awarded and the relevant evidence. The Council awarded what it described as ‘maximum amounts’ of DRE for:

• Special clothing.
• Additional washing/ laundry costs- bedding, laundry and cleaning.

30. In its response the Council provided a copy of its DRE guidelines which included maximum amounts for some items. The maximum amounts were based on information from 2017 and had not been updated. The Council also said it allowed the maximum amount unless there was evidence of ongoing costs above that amount. There was no evidence of how it considered Y’s individual circumstances to make its decision, it fettered its discretion and applied a blanket approach using out of date information.
31. This meant there was uncertainty about the Councils decision and Y could have missed out on DRE allowances they were entitled to. The Council should reconsider the DRE listed at (29) and be able to explain its decision making taking into account Y’s individual circumstances.
32. I was concerned about the Council’s approach to DRE and applying maximum amounts. The figures were based on out-of-date information and were not readily available to applicants. This meant the decision-making lacked transparency and applicants were assessed against guidance they did not have access to.
33. I did not find fault with the Council’s decision not to agree DRE in relation to:

• Special dietary needs.
• Transport costs.
• Additional heating.
• Purchase of special equipment- door grill.
• GP letter.

34. The Council considered the families requests and explained its decision not to agree these DRE requests. To reach its decision it considered the information from the family, GP, social worker and occupational therapist. The family may disagree with the decision but that does not mean it is wrong. Where there does not appear to fault in the way the decision was made we would not question the professional judgement of the decision maker.
35. I did not find fault with the Council for its decision about the amount of DRE it allowed for:

• Specialist equipment- ergonomic chair.
• Purchase of specialist equipment- laptops.

36. The Council considered the families requests and the invoices/ receipts for this equipment. It explained its calculations to reach the amount of DRE it would allow for these expenses. There was no fault in the way it reached its decision.
37. Mr X also complained the Council agreed to meet with the family in May 2022 to complete the financial assessment, but it completed it prior to the meeting. The Council said the meeting was to discuss the financial assessment and DRE not to complete the assessment. It said the family asked to rearrange the meeting to August. The family can arrange to meet with the Council if they want to.

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Agreed action

38. Within one month of my final decision the Council agrees to:

• Reconsider its decision in relation to the DRE listed in paragraph (29). It should be able to evidence how it reaches its decision and what information it considered.
• If, as a result of the review, it decides to increase Y’s allowance it should backdate this to April 2021.

39. Within two months of my final decision the Council agrees to:

• Review and update its DRE guidance, particularly the ‘maximum amounts’ in light of the issues identified in this statement to ensure it does not fetter its discretion. It should also consider publishing this information or providing applicants with a copy to ensure its decision making is transparent. If it decides not to it should be able to explain why.

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Final decision

40. I found fault causing injustice. I completed my investigation.

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Investigator's decision on behalf of the Ombudsman