Date of decision: 16 April 2025
Summary
This report concerned a challenge to a Council’s financial assessment for adult social care charges. Miss X argued that essential disability-related expenses were not fully recognised, making the required weekly contribution unaffordable and forcing her to forgo support. The Council decided that some of the disability related expenses were a choice, therefore it would not fund them through allowing for a disregard. The Ombudsman found the Council’s decision-making process to be lawful and reasonable.
What happened
The Council initiated a financial assessment for Miss X’s care charges in November 2021. During a home visit in February 2022, Miss X disclosed spending on therapies and vitamins, and was advised to provide medical evidence for these costs to be considered.
The Council completed the assessment in March 2022, initially setting the weekly contribution at £71. After an appeal and review in November 2022, the Council reduced this to £51 per week, and following further appeal and evidence, to £33 (backdated) and then £40 per week from March 2023. The Council allowed maximum amounts from its DRE policy for laundry, dietary expenditure and domestic work (set at £14 a week, but with exceptional circumstances referenced).
Miss X submitted further evidence from health professionals supporting her use of non-NHS therapies, vitamins, and holistic treatments, and requested additional allowances and refunds for backdated assessments. Despite her supporting letters stating that she experienced benefit from these treatments, she was unable to get prescriptions for vitamins and other remedies. Likewise, some of her treatments were either not available on the NHS or she did not meet the criteria for the treatment on the NHS. This led the Council to believe that these were not necessary features of her care, as she would have been able to receive the support from the NHS had they been regarded as clinically necessary. It also justified the allowance given to her by stating that collagen and vitamins should come from the general MIG living allowance. It more than doubled the allowance for cleaning, however, and increased allowances for counselling and therapy.
Miss X claimed £345 a week for DRE in total, including private counselling, soaps, vitamins, and herbal remedies. She paid 10 different counsellors, including psychotherapy, life coaching, and spiritual healing and mediums, at an average of £219 a week. The Council said the maximum disregard under its policy was £101.75 a week which was the full amount of the daily living component of PIP, effective April 2023.
She complained on account of the Council overlooking items essential to her wellbeing:
- Collagen and vitamins to support hormonal imbalance and physical burnout.
- Herbal remedies and treatment advice, due to side effects from traditional medicines and medical soaps.
- Counselling and spiritual healing for her anxiety, Obsessive Compulsive Disorder (OCD), mental health and emotional regulation challenges resulting from autism.
- Counselling and holistic therapy to support anxiety, autism, and OCD.
- Monthly meetings with a psychologist.
Supporting letters from Miss X’s doctor and medical professionals confirmed the treatments she was taking and that she reported feeling benefit from them. They also confirmed Miss X could not get NHS prescriptions for vitamins, herbal remedies, or alternative remedies.
The Council ultimately allowed £6 per week for vitamins as part of Miss X’s dietary expenses, £4.60 for laundry, £30 per week for counselling and holistic therapy (no further rationale supplied) and allowed £264 backdated DRE from prior periods. In all, the DRE allowed as a disregard was £43.20 a week.
What was found
The Council followed statutory guidance and its own policy throughout the assessment and appeals. It considered all the evidence provided, including medical letters, and exercised discretion to increase some allowances above policy maxima.
The Council distinguished between costs deemed necessary (and not available from the NHS) and those considered personal choice or not medically essential. It allowed partial allowances for counselling and therapy, but not for herbal remedies, spiritual healing, or non-prescribed supplements, as these were not supported as medical necessities.
The Ombudsman found no evidence of fault in the Council’s process or decision-making. The Council agreed to refund £264 for backdated assessment periods. No further financial remedy was recommended as there was no maladministration.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
Under the Care Act 2014, councils must carry out a financial assessment when charging for care, ensuring people are left with at least the minimum income guarantee (MIG) after charges.
Disability-related benefits can be considered, but councils must ensure sufficient income is retained for necessary disability-related expenditure (DRE), as defined in statutory guidance. DRE should include reasonable additional costs directly related to disability, not limited to that which is considered necessary by way of meeting needs for care and support, but must be evidenced as necessary and not available free from elsewhere (eg via the NHS).
The report suggests that Councils may set policy maxima for certain types of DRE but must be prepared to exercise discretion where justified. We think that the legal position is that Councils can offer standard DRE allowances without regard to the evidence, to save time and aggravation.
We think that they can also assert that ordinary people without disabilities may well spend £x a week on things that are NOT disability related, so that there would feasibly be an evidence basis as to a threshold over which the DRE on foodstuffs etc, could be claimed.
But we do not think that there’s any point in asserting a maximum when not even the limit of the person’s PIP would logically determine the actual DRE that someone is feeling that they have to spend. It can’t be a decision without individual consideration. Decisions must be evidence-based, rational, and in line with the obligation to disregard DRE, so far as it is related to disability and a reasonable amount. The cost of an item or a service is the cost of it, and a maximum could only be applied if the expenditure were related to an amount of something that could be limited, but wasn’t BEING limited, if the ‘choice’ rationale were to be likely to be found to be successfully asserted.
The Ombudsman’s role is to review the process, not substitute its own judgment for the Council’s, provided the process is lawful and fair. This case confirms that councils are entitled to distinguish between necessary and discretionary expenses, and that robust, transparent processes protect both public funds and individual rights. We find it worrying that the Ombudsman does not mention the Windsor & Maidenhead judgment, which is the leading case on the proper application of the ‘related’ and ‘necessary’ tests within the structure for disregarding DRE. But what is clear is that Brighton & Hove took a very careful line having been found at fault with regard to medicinal cannabis costs off prescription, in an earlier DRE disregard complaint, earlier this year.
It should not be overlooked that the report makes it clear that the Council’s policy provides for an increased MIG allowance for people of working age by an extra £45.75 per week to help with the extra costs of disability.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Brighton & Hove City Council (24 006 224) report.
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