Decision Date: 27th April 2021
What Happened
Mr X complained on behalf of his adult son, Mr Y. Mr Y had severe learning difficulties. Mr X had responsibility for Mr Y’s finances. He moved to residential care accommodation in 2016. Three out of four weekends he would return home to stay with his parents.
Initially, Mr Y did not have to contribute to his care charges. After a financial assessment review in July 2017, the Council determined that Mr Y should contribute £100 per week, as he had started receiving employment support allowance in June 2016. Mr X did not alert the Council to the increase in Mr Y’s income, however the Council decided not to backdate the charge to June 2016, but from April 2017 instead. The Council sent notification of this, and subsequent invoices, to Mr Y’s accommodation provider instead of Mr X. The provider passed on these invoices only to Mr X in October 2017.
Mr X contacted the Council requesting a new financial assessment, as he felt the contribution was too high. The Council told Mr X in December that a new assessment would not change Mr Y’s contribution and advised Mr X to complete a waiver form instead.
Mr X sent the completed form in January 2018. The form stated that Mr Y had an income of £125 per week, expenses of £90 per week for food, clothing, and shoes, and a personal allowance of £24, which he was clearly overspending on. The Council decided not to reduce the contribution. But the LGO found no evidence that this was communicated to Mr X.
In November 2018 a social worker and financial assessment advisor visited Mr X to discuss the outstanding charges, which now amounted to £4700. The Council refused to waive the charge, but stated it would consider reducing it in the future.
Mr X agreed to set up a payment plan, however maintained that Mr Y’s personal allowance was not enough to sustain him or his wellbeing. He needed money for food and drink when accessing the community, he had to pay more than average for shoes due to his disability, and he spent money on a gym membership for swimming. Mr X asked the council to increase Mr Y’s personal allowance to £50 per week.
Mr X heard nothing from the Council regarding reducing Mr Y’s contribution, so contacted the Council numerous times between February 2019 and April 2019.
The Council visited Mr X in May 2019 to explain Mr Y’s contribution costs, and why the debt had now risen to over £9000. It highlighted that Mr X had agreed to a payment plan, but had not made any payments. The Council also told Mr X that it had increased Mr Y’s personal allowance to £35 at this point.
In June 2019 Mr Y’s contribution changed to £90.55 per week (no reason explained from the report).
Mr X complained formally to the Council in August 2019 regarding the charging issues. The Council responded in October, stating that as Mr X signed the client contribution form and had applied for a waiver, it considered that Mr X was fully aware of all contributions expected. Furthermore, the Council had visited numerous times to explain the costs and that the Council had refused the waiver. The Council highlighted to Mr X that he should use Mr Y’s benefits towards the care charges and proposed another payment plan to be set up urgently.
Mr X complained again in November 2019 disputing the suggestion that he had agreed to set up any payment plan the November previously. The Council met with Mr X in December 2019. It confirmed that Mr Y owed over £11,000 for care contributions, and Mr X agreed to set up a payment plan.
It was also noted in this meeting that Mr Y had expenses for food, clothes, horse riding and gym membership. The Council agreed that horse riding and swimming were beneficial for Mr Y, so would discuss increasing Mr Y’s personal allowance to £70 per week, backdated to September 2019 when he started horse riding. The Council would not accept expenses for food and drink.
In February 2020 Mr Y’s personal allowance was increased to £53.75. The Council considered the cost of riding lessons but did not refer to the gym membership for swimming. Mr Y’s contribution was reduced to £74.90 per week. The Council reiterated that Mr X had accepted that he was responsible for paying Mr Y’s contributions, as his appointee, but if he was struggling, the Council could take over this role.
Mr X complained again in April 2020. He complained that:
- The Council had not provided enough detail in its letter from February 2020.
- The Council had not informed him in a timely manner of the outcome of the waiver application or given him information about his right of appeal.
- He first became aware of the charges in November 2018.
- The Council had sent all previous invoices to Y’s accommodation provider.
- The first time he received the Council’s financial assessment dated 10 April 2017 was in June 2019.
- The Council had failed to explain how he knew about, took part in, or agreed with the financial assessments.
- He still disagreed with the Council’s allowances made for Y’s recreational activities, and its lack of contribution towards food when Mr Y went out.
The Council replied in May 2020:
- It provided a full breakdown of the financial calculations
- It accepted the delay communicating the waiver decision, and its failure to put its decision in writing
- After considering all the information, it was reasonable to believe Mr X knew about the charges in October 2017, not November 2017, as he contacted the Council to say the charges were too high
- Although the invoices were originally sent to the accommodation provider, they were sent to Mr X by October 2017
- Mr X had received the financial assessments, he just did not agree with them
- It maintained its decision not to allow food or drink as deducted expenses from means
- It had accepted some expenses for Mr Y, but these were exceptional
- It accepted that it had not replied to his complaints in a timely manner and would review its procedure
- The Council recommended a payment of £200 in recognition of the time and trouble Mr X went to, in bringing forward his complaints
- It was prepared to disregard any contribution due before October 2017 in recognition of the delay in sending invoices to Mr X
- It also advised that Mr X urgently set up a payment plan, and that if he failed to do so within 3 months, the Council would apply to unseat him and become Mr Y’s appointee
Mr X remained unhappy and complained to the LGO. Mr X complained that the Council had not carried out a fair assessment of Mr Y’s contribution, had not told him it had refused the waiver request and had not properly advised him about the charges mounting up.
In response to the LGO investigation, the Council accepted it was at fault. After reviewing its financial assessments of Mr Y, it confirmed that it had not calculated his contributions correctly: it had entered the information about Y’s residential care and respite package on its system incorrectly, and it had not taken account of the three weekends out of four that Y spent at home.
The Council revised its assessment leading to a reduction in the charges of £3898. The new weekly charge was now £52, instead of £76.90. The Council confirmed it would not seek to become Mr Y’s appointee, and that poor communication between departments meant that the error was not picked up.
The Council suggested the following actions to improve its service:
- Ensure all officers check the accuracy of the schedules listing the services the Council agrees to provide as part of the care plan.
- A review of the instructions to social workers and financial assessment team staff regarding completing the care plan schedule.
- Social work staff systematically checking all current schedules are correct.
- Managers completing regular random audits of care plan schedules.
- Reminding staff to follow up agreed actions. This would enable service users to challenge issues such as increasing debt in an informed way.
Regarding Mr X and Mr Y, it stated it would:
- Meet with Mr X and offer a sincere apology.
- Provide clear information to Mr X about the contribution.
- Offer to pay Mr X £500 for his time and trouble as it had not recognised its faults even through 3 stages of the complaints process. It was not until Mr X went to the LGO that the Council identified its errors.
- Offer to pay Mr and Mrs X £1000 each for distress caused by the accumulating arrears which were higher than they should have been due to its errors.
- Recommend Mr X arrange to pay the outstanding arrears as soon as possible, and the ongoing charges.
Direct payments and respite care
Whilst these issues were ongoing, Mr X also complained to the Council in April 2019 that it had not arranged any respite care which it had agreed to, in December 2017. The Council had agreed to two hours of respite care per week, but had been unable to find a provider. It therefore offered direct payments, and agreed to an additional two hours of respite care in June 2018. The direct payments were intended for Mr X to employ a personal assistant (PA) to provide assistance over the weekends Mr Y spent at home.
The Council replied to Mr X’s complaint in May 2019 highlighting that Mr X had agreed to find the PA himself, and that a social worker and disability charity were now assisting him.
Mr X complained to the Council in August that the Council had never actually paid any direct payments. The Council replied in October stating that it had already told Mr X that he should apply for the payments once he had found a PA, and the Council had not received any forms from Mr X.
After much to-ing and fro-ing between Mr X and the Council, it accepted that “matters had been allowed to drift”. There had been confusion as to who was responsible for finding a PA. Although it was not for the Council to recruit a PA, it asked a social worker to support Mr X when it became clear he was struggling.
In response to the LGO investigation the Council recognised its failure to handle Mr X’s request for direct payments properly from June 2018, which meant Mr X and his wife missed out on respite support. They offered £3000 which would be used to reduce Mr Y’s outstanding debts.
What was found
The Council was at fault for failing to properly calculate Mr Y’s contribution charges, and failed to deal with this fault through its complaint procedure. It also delayed in dealing with Mr X’s complaints. It also failed to send written notice of its refusal to grant the waiver, which was also fault. The LGO considered that the Council had offered suitable remedies to Mr X and Mr Y regarding these faults.
However, the LGO identified further faults from the Council.
The Council was at fault for its lack of clarity regarding Mr Y’s personal allowance. When the Council increased his personal allowance to £35, it was to “meet his weekend needs”. Also, when it agreed to increase his budget to £53.75, it only considered the cost of riding lessons, not the cost of gym membership to cover swimming. The LGO recommended that the Council clarify what it considered necessary for Mr Y’s personal allowance and why.
There was also a lack of clarity as to how Mr X could recruit a PA. The Council should have helped Mr X to find an assistant since he was clearly having difficulties. Failure to do so was fault. The LGO considered the £3000 a sufficient remedy.
The LGO recommended that the Council:
- Pay £500 to Mr X for his time and trouble
- Pay £1000 each to Mr and Mrs X for the distress caused by its miscalculation of the accumulating arrears.
- Pay £3000 for its poor handling of Mr X’s direct payments request, to be offset against Y’s arrears.
- Write to Mr X and the Ombudsman confirming the outcome of its action plan.
- Consider all the expenses Mr X has requested and write to him with a copy to the Ombudsman, clarifying what is has agreed or will agree to and its reasons.
Points to note for professionals, councils, people who use services and their carers, advocacy providers and members of the public
This is a torturous report to read through because of the amount of time and effort that went into a dialogue that never actually resulted in an acceptable decision about charging. All that time and effort, and there was still fault found.
The main point here is that busy-ness is not enough of a justification for delays of this nature. Correspondence, dialogue, forms and contact do not make up for a lack of defensible decision-making. The only thing that is sufficient in the LGSCO’s eyes is to follow agreed process and explain one’s workings out. And it is expensive to fail to do this as can be seen here.
The Care Act guidance around charging sounds simple – the service user who is at home must be left with the minimum income guarantee plus enough of one’s disability-related benefits to meet disability needs, that arise from one’s condition.
We know that there are not many reports of this nature, applying to residential care clients, so it is worth highlighting that the interesting thing about this report (which is obscured by there not being any reference to a P.E.A. – a personal expenses allowance) – is the assumption by all parties and the LGO’s investigator that a person in a care home can assert a wish to spend more than the Personal Expenses Allowance on themselves every week, as if it was DRE. DRE for people at home turns on receipt of benefits that are defined and which cease to be in payment for most people in a care home, although going home regularly CAN make a difference, due to the counting rules that are applicable. We wondered on first reading whether the arguments about riding and the swimming etc were actually about DRE because the man’s cyclical going home meant that he had kept his PIP, perhaps, but there is no mention of DRE at all, so we think it’s a report on one’s PEA being flexible.
The report shows that the asserted need for the spending should be considered and upheld in the discretion of the council’s staff. We think that this is correct, although it is not mentioned in the Guidance as being of general application to those in care homes, because all charging is discretionary and all charging is wellbeing-driven, and affordability driven, we would suggest. In practice, assessing how much to charge is a minefield because it is so individual, and therefore the principle of transparency, set out in the Care Act guidance, is vital.
Our advice, borne out here, is: include everything you can think of at the start; include specialist things, things that you need to use more of than someone without a disability and things that you have to use in a different way; check and double check why something is not seen as disability-related or wellbeing related if one is in a care home and if it is not included by the Council and say straight away if something changes or you get into difficulties with paying. Councils, this report shows, need to be as specific as possible about why something is or is not included in any disregard from means.
Disability Related Expenditure (and PEA levels, this report suggests) often require advice, particularly in the light of the Norfolk case which found that a charging policy can be discriminatory against those with the severest forms of disability if they are on the highest rates of disability benefit. CASCAIDr provides a range of low-cost advice relating to this. You can find out more here CASCAIDr’s Basic Charges Check – CASCAIDr
It is interesting to us that even though this man was cared for in a care home, he had a direct payment (or his parents did) for respite for support when he was home. Respite is a euphemism for replacement care when it is based on a service being provided directly to the service user. The service user is chargeable for it, but we can’t tell how that played out for this man given his charges for residential care would have used up all his benefits other than the PEA.
It is good to be reminded that offering a direct payment does not get the Council completely off the hook of actually ensuring needs are met, if it knows that there are issues with the finding of a worker or a service. In the words of the guidance, “the local authority must be satisfied that the person is able to manage the direct payment by him or herself, or with whatever help or support the person will be able to access. Local authorities should therefore take all reasonable steps to provide this support to whoever may require it.”
Once all the payments from the Council, recommended by the LGSCO, were added up, Mr Y owed very little. So, although the LGSCO cannot request a waiver to ‘wipe out’ the arrears, the recommendations would have had that very effect: a lesson for councils to be increasingly aware of.
The full Local Government Ombudsman report of Warrington Council’s actions can be found here: https://www.lgo.org.uk/decisions/adult-care-services/charging/20-000-864