Summary: There is no evidence of fault by the Council in the way it has considered Ms A’s disability related expenditure and financial contribution for her care.

The complaint

1. Miss X complains the Council has not properly considered her adult daughter, Ms A’s disability related expenditure and has not taken the Norfolk Judgment into account. As a result, she says the Council’s assessment of her daughter’s financial contribution is incorrect and this has led to financial hardship.

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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. 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

4. I have discussed the complaint with Miss X and considered the information provided by the complainant. I have made enquiries of the Council and considered the comments and documents it provided. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legislation, guidance and policy

Financial assessments

5. 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.
6. 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)

Disability related expenditure

7. 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.

The Council’s policy

8. The Council’s Adult Social Care Policy: Financial Policy Reference (2019) says:

3.18 Disability Related Expenditure (DRE) Allowances: these are discretionary allowances for people on disability benefits and receiving non-residential care from the council. It provides for disability-related costs incurred by the person to be offset against the person’s assessed income.

3.19 The council will allocate all such clients a pre-set banded DRE allowance. The value of the band varies according to the level of DWP disability benefit the person receives, rather than being based on the person’s specific disability-related costs. This helps the person avoid the intrusive questions on medical and other factors required to set a personalised DRE allowance. However, everyone is made aware that they can appeal against this automatic allocation and ask for an individual allowance based on their own specific needs and costs if they provide suitable evidence.

9. The Council’s DRE guideline allowances for the period relevant to this complaint were:
• £10.00 per week for lowest DWP benefit rate Disability Living Allowance (DLA) Care Component
• £15.00 per week for medium rate DLA Care Component, Low rate Attendance Allowance (AA) or Standard rate Personal Independence Payment (PIP)
• £25.00 for the highest DWP rate DLA Care Component, AA or PIP

What happened

10. Ms A is a physically disabled adult with a learning disability who is unable to make decisions regarding her care. Miss X lives with Ms A and manages her finances and paperwork on her behalf. Ms A care is jointly funded by the Health service and the Council. The Council did not require Ms A to financially contribute to her care costs.
11. In late 2022 the Council completed a further care assessment of Ms A. The assessment showed Ms A required support occasionally throughout the night and that she received support at night from family, friends or volunteers.
12. In response to the question “Has the citizen's financial situation changed meaning they need a new financial assessment?” the Council answered “no”.
13. Following the care assessment the social worker referred the case to the Council’s financial assessment team regarding Ms A’s contribution for her care. The referral stated “reassessment required for updated income.” The Council also said it had last completed a financial assessment in 2015, and the outcome was that Ms A had nothing to pay.
14. In April 2023 Ms A’s sister Ms B asked why the Council did not fund daytime activities for Ms A. She also asked why petrol costs were not funded.
15. In May 2023 the Council replied it would not normally fund a specified activity but would fund support to access an activity where it assessed there was a need. The Council said it would revisit the assessment to identify Ms A’s needs more clearly. It also said it would request a new financial assessment as it had not carried one out for quite some time.
16. Ms B replied the Council had provided misleading and contradictory information about funding for activities. She also said the Council’s decision to carry out a financial assessment was stressful and punitive for Miss X. She asked the Council to explain why it had decided to carry out the assessment at this point. She also said the Council’s care assessment in December 2022 stated that a financial assessment was not needed.
17. Later in May the Council sent a financial assessment form to Miss X. She completed the form and returned it by early June.
18. The Council carried out its assessment and on 28 June it notified Ms A that her maximum financial contribution for her care was £40 per week. It said the care contribution would start on 28 June 2023. The Council sent Ms A a DRE form to complete if her expenses were more than £25 per week.
19. Miss X told the Council she would appeal the assessment. She said the Council should have reviewed the DRE. She asked
• what the Council had accepted in relation to DRE.
• whether the Council had taken account of housing costs.
• whether the Council had made an allowance against Ms A’s Personal Independence Payment (PIP) to compensate her because she required care at night but they did not ask for a service to provide this.
20. In July 2023 the Council replied that
• it gave an automatic DRE allowance of £25 per week to cover any additional expenses due to disabilities because Ms A received PIP. However, it said it would consider information and evidence Miss X provided to see if it could allow any excess over £25.
• it appeared Ms A did not have any liability for rent or council tax, so there were no property related expenses.
• PIP was not based on night time needs and the full benefit was included as income in accordance with the Care Act 2014 and its Adult Social Care Policy.
21. The Council later provided Miss X with information about the provisions of the Care Act 2014, The Care and Support Statutory Guidance regarding income, and its own policy “Guideline allowances for disability related expenditure)”. The Council confirmed it did not provide any allowance for nighttime care regardless of the disability benefit received
22. Miss X completed the Council’s DRE appeal form and returned it to the Council. The form included guidance which stated applicants should provide receipts and invoices for at least a three month period. Miss X provided evidence to support some of the DRE items she requested. The appeal form guidance also said:

“In addition, if you are getting DLA (care) or AA High Rate (which both assume that you need care night and day) but are not receiving care in the night, you can "appeal" and ask for an additional fixed allowance to compensate for the fact that we have taken the whole of your DWP benefit into account.”

23. Miss X stated that “the night time allowance needs to be applied as per discussions with [social worker] [Miss X] requires nighttime care 7 nights a week but makes no social funding claim for this.”
24. In August 2023 the Council requested receipts and bank statements for several of the items claimed, preferably for three months. Miss X provided receipts, but she said some were not available.
25. In September 2023 the Council asked Miss X is she was able to continue supporting Ms A at night or whether she was requesting an assessment of her nighttime needs and for the Council to meet those needs. It does not appear that Miss X answered this question.
26. In October 2023 the Council reviewed Ms A’s financial assessment. It said that it had allowed some of the expenses claimed with minimal evidence. But it would require full evidence when it reviewed the DRE for the next year. The Council
• agreed it would allow some of the expenses Miss X claimed. However, these did not total more than the Council’s higher band of £25 per week, and so did not affect the contribution.
• noted Miss X’s housing benefit was reduced by £19.61 per week because Ms A was deemed a non-dependant in the household. Therefore, it allowed £19.61 as property related expenditure. This reduced the care contribution to £20.74.
• said no allowance was made in the financial assessment for a nighttime allowance. All disability benefits apart from the mobility component were included in full in the assessment.
27. In November 2023 Miss X complained the Council had not properly considered The Care Act 2014 alongside the NAFAO (National Association of Financial Assessment Officers) charging guidance 2023/24. She asked for an explanation and set out why she did not agree with the Council’s consideration of each expense including amongst other things petrol, bedding, fuel costs and laundry.
28. Miss X also complained that the Council had discriminated against Ms A in relation to nighttime care because it had not applied the Norfolk Judgement principles. This is a high court ruling from 2020. The Courts considered the question of how Councils need to have regard to the potential differential impact of charging policies on people who have a higher than normal proportion of their income from benefits. The Court ruled Norfolk County Council’s policy was unfair and discriminated against people who had more significant disabilities and were unable to work. Miss X said Ms A had not been provided with any nighttime care and received the highest level of PIP. Miss X asked the Council for a copy of its charging policy and financial hardship policy.
29. Miss X said the Council’s decision to carry out a financial assessment at the time it did caused her stress. She had been struggling to arrange additional personal assistant care and had not had a carer break for six months. The Council had threatened to charge the full amount for care if she did not complete the forms within four weeks.
30. In January 2024 the Council replied to Miss X’s complaint. It reviewed the DRE and agreed some further items and provided an explanation why it did not accept others. It asked for receipts or evidence for other items. However, the agreed changes to the DRE did not amount to over £25 per week and so did not change the care contribution.
31. In relation to nighttime care, the Council said whilst there was an assessed need for Ms A’s incontinence pads to be changed at night, Miss X had declined the Council’s offer of support for this. In addition, the Council could not consider the care provided as an expense as there was no payment or cost to Ms A.
32. The Council noted Miss X complained the financial assessment timing caused her distress. But it explained that the December 2022 care assessment identified that a financial assessment was required as it had not completed one for some time. It would also be beneficial to identify any further DRE. The Council said it was standard practice to update financial assessments to ensure it was charging appropriately for services. It apologised that Miss X felt unsupported. It said financial assessment officers were available to assist with any questions. It noted Miss X had not contacted it to ask for support.

Analysis

33. The Ombudsman is not an appeal body. It is not our role to carry out financial assessments, decide what contribution someone should make to their care costs, or decide whether certain expenses should be classed as DRE. Our role is to investigate the process a council followed, to assess whether it made its decision properly. We look for evidence of fault causing injustice to the complainant. We cannot question the professional judgment of council decision makers where the process was not affected by fault.
34. There was no fault by the Council in its decision to financially assess Ms A. The Council had not carried out a financial assessment since 2015 and so this was overdue.
35. Miss X says the timing caused her stress and inconvenience. However, I do not consider this could be avoided as the Council is required to assess financial contributions and this was long overdue. I note the Council referred the matter in December 2022 but did not complete the assessment until June 2023. However, it did not backdate the charge and so the delay did not cause any injustice.
36. The Council provided information about how applicants could request support. I have not seen evidence that Miss X asked for support during the process.
37. The Council asked Miss X for receipts where appropriate, and has accepted some expenses without the receipts it would normally expect. It has asked for further evidence including receipts and says it will consider expenses where Miss X provides them. There is no apparent fault here.
38. Miss X raised a number of points regarding DRE. The Council reviewed its assessment and considered these. It accepted some expenses, but it did not make a difference to the outcome. I have not seen evidence of fault here. The Council considered this in accordance with the statutory guidance and its policy.
39. Miss X complained regarding the Council’s consideration of her request for Ms A’s nighttime care as a DRE. The Council has explained that while this is a need, Miss X provides care and has declined support. In addition there is no payment for these needs and so it cannot treat it as an expense or DRE. The Council is not at fault here.
40. Miss X referred to the Norfolk judgement and said the Council did not take account of this. In its response to my enquiries the Council explained it applies banded disregards initially, but it will consider any appeal on an individual basis. There is insufficient evidence of fault here as the Council considered Ms A’s DRE, and Miss X’s appeal fully. Therefore, I consider it had regard to the Norfolk Judgement.
41. Miss X asked for a copy of the Council’s charging policy and financial hardship policy, but says the Council did not provide this. The Council provided me with a copy of its Adult Social Care Financial Policy Reference. It does not have a financial hardship policy. The Council said it is not clear why it did not send the policy. However, I do not consider this amounts to fault. And I note the Council sent a link to Miss X regarding information on its adult social care charges on 13 July 2023.

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Final decision

42. There is no fault by the Council and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman