Summary: Miss X complained the Council failed to properly consider a disability related expenditure claim for her son, Mr Y. We have found fault in the Council’s actions. We agree with its recent change of mind which said it should have considered the circumstances of the claim more carefully when it made its original decision. This caused avoidable distress and frustration for Miss X and meant Mr Y was expected to pay towards his care and support for a period where he should not have done. To remedy the injustice caused by this fault, the Council has agreed to complete its suggested remedy of an apology and symbolic payment to the family.

The complaint

1. Miss X complains the Council has not properly considered her son’s disability related expenditure (DRE) claim and has not backdated this to December 2022 when he began to be charged a contribution towards his care and support package.
2. She says this has caused her avoidable distress and frustration and affected Mr Y’s finances.

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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 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

5. I have considered all the information Miss X provided and discussed this complaint with her. I have also considered information provided by the Council.
6. Miss X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Charging for (non-residential) social care services

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)

Disability Related Expenditure

8. 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 a DRE assessment (DREA) to allow the person to keep enough benefit to pay for necessary DRE to meet any needs it is not meeting.
9. 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.

What happened

10. Miss X is representing her adult son, Mr Y, in this complaint. Mr Y has learning difficulties and several other health diagnoses. Miss X advocates for Mr Y when dealing with the Council. Mr Y receives a care package organised by the Council.

2023

11. At the end of March 2023, Miss X received a letter from the Council to advise that as Mr Y was soon to begin receiving additional benefits he was due (universal credit payments), she should contact the Council’s financial services team.
12. Miss X asked Mr Y’s social worker, Officer J, if the DREA process could be started straight away. She was advised to wait until the Council sent a letter to Mr Y detailing its assessed charges and what he might be expected to contribute towards his care. When Mr Y’s payments increased, Miss X contacted the Council’s financial services team.
13. In mid-April 2023, it sent Miss X a letter to say that Mr Y should contribute £51.37 per week towards non-residential care and support services.
14. A few days later, Miss X contacted Officer J to begin the assessment process.
15. Between April and August 2023, Miss X continued to communicate with the financial services team and chase Officer J to see if the assessment had been finished.
16. At the end of August 2023, Officer J emailed Miss X to advise the Council had agreed the amount Mr Y could claim for DRE. This assessment was to be in place for the next 12 months.
17. Miss X and Officer J continued to communicate about the DREA during September 2023. Officer J advised Miss X that as the form was submitted to the finance team in July, this is when the DRE allowances would be agreed from. Miss X disputed this stance as she said she had done what she had been advised to do and there had been significant delays with the assessment process, which she was not responsible for.
18. At the beginning of October 2023, Officer J confirmed she would discuss the case with her manager and see if the DRE allowance could be backdated to the beginning of when Mr Y had started to be charged.
19. In mid-December 2023, Officer J confirmed that after meetings with her manager and the finance team, the Council would begin the DRE allowance period for one year from mid-April 2023 when the assessment process was started. It would be reviewed when the year ended.
20. Later in December 2023, Miss X complained to the Council about the situation with the DREA and the start date of the DRE claim. She requested the Council backdate this to December 2022 which was when Mr Y’s financial contribution to his care package had been backdated to.

2024

21. At the end of April 2024, the Council sent its stage one response to Miss X’s December 2023 complaint. In this letter, it:
• apologised and upheld her complaint about the delay in completing the DREA;
• advised it would not backdate the DREA to December 2022;
• confirmed the DREA had been backdated to the end of March 2023; and
• signposted Miss X to the Ombudsman.
22. Miss X then brought her complaint to us.
23. At the beginning of September 2024, the Council contacted the Ombudsman to advise it had changed its position on Miss X’s complaint. The Council said it:
• had decided to backdate the DRE allowance;
• accepted its original decision did not consider the possibility that if Mr Y had been in receipt of the higher benefit amount from December 2022, which was when the benefit had been backdated to, then Miss X would have requested and begun a DREA earlier; and
• would re-assess Mr Y’s financial contribution from December 2022 and offer either a refund of any contributions paid or instead credit Mr Y’s care and support account towards any future payments.
24. The Council ended its email by saying it would offer Miss X an apology for the time and trouble in raising her complaint to the Ombudsman and pay her £100 to remedy the inconvenience caused.
25. In an email sent to the Ombudsman later in September 2024, the Council confirmed it would send Miss X a copy of the completed DREA. The Council also said it had clarified to relevant officers that a copy of the DREA form should always be sent to those concerned so it was clear what had been agreed. It confirmed that related training for officers dealing with DREAs had been made compulsory and that it would issue reminders to officers about the Council’s policy and guidance notes.
26. In October 2024, the Council confirmed to the Ombudsman that it had spoken to Miss X to offer its suggested remedy and she was satisfied with the outcome.
27. In December 2024, Miss X confirmed that she had not had any further contact from the Council since October. She said she had not received the apology or the suggested £100 after she had provided her bank details, or received a copy of the DREA form.

Analysis

28. The Council has already confirmed that its original decision did not consider the possibility that Miss X would have begun the DREA process earlier. This previous lack of consideration was fault. It would have caused Miss X avoidable distress and frustration. It also meant that Mr Y was expected to contribute more towards his care than necessary for the time period concerned.
29. In the circumstances of this complaint, I am satisfied that the offer made by the Council of an apology and a symbolic payment of £100 is an appropriate remedy for the injustice caused by the identified fault. I have made a recommendation linked to this below, given that Miss X confirmed this had not yet been carried out by the Council.
30. Regarding the DREA process, the Council has already taken corrective action in terms of further guidance and training issued to its officers. Therefore, I do not intend to make any service recommendations linked to this.

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Agreed action

31. To remedy the injustice caused by the fault I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
• apologise to Miss X and Mr Y for the injustice caused by the identified fault;
• make a symbolic payment of £100 to Miss X to reflect the frustration and distress caused by the injustice;
• send Miss X a copy of the completed DREA as agreed; and
• remind relevant officers and managers of the need to act promptly in fulfilling a remedy the Council has already agreed with a complainant.
32. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
33. Payments made are in line with the Ombudsman’s guidance on remedies.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman