Decision Date: 4th Jan 2023
What happened
The complainant, Mrs X, complained on behalf of her disabled son Mr Y, who lived with his parents. Mr Y was dependent on them to meet his care and support needs. Mrs X also assisted him with his finances. Mr Y had been attending day services and respite care for a number of years, prior to this complaint.
In November 2018, the Council had allowed a sum of £50 to be included in Mr Y’s financial assessment for board and lodging. A month later however, the Council told Mrs X that this would be disallowed, unless Mr Y was actually liable to pay rent or there was a tenancy agreement. The Council told Mrs X that they would send her and Mr X information about what would be allowed in the financial assessment. A few days later, the Council confirmed that the £50 would be allowed as household costs for board and lodgings.
In March 2020, Mr Y was sent his care plan. Supported by his parents, he signed and returned the plan in April. The plan set out that service A cost £39.14 per session and service B cost £59.13 per session. The Council had also by this stage changed their position again on the £50 household costs allowance. They had said allowing the £50 was an error; these costs should have been allowed for in other elements of the financial assessment. It is unclear from the LGSCO report, exactly at what point their view changed.
[No actual financial assessment was done, so there was no right to charge unless a light touch assessment had been done, no mention of which is made in the report.]
In June 2021, a financial assessment was completed by the Council for respite services and separately for day services, as they were each charged differently. These assessments had set out that Mr Y was to pay £106.40 per week for respite services, and nothing towards the day services.
Upon receiving an invoice in July 2021, which included a contribution towards his day-care services, contrary to what had been said, Mrs X telephoned the Council, informing them that Mr Y would have to cease attending these services, if he had to pay that much (although Mr Y did continue to attend the day-care services).
When the social worker called Mrs X the following week, Mrs X informed them that Mr Y could not afford to pay the invoice and that it was the first he had received for the service.
Mrs X also confirmed that she had contacted the finance team, who were to review Mr Y’s financial assessment and contribution.
Mrs X also informed the social worker that as a result of these costs, they had cancelled My Y’s transport [the report does not make it clear whether that transport was to both services, but it may well have been] and would themselves support his travel to and from his day care and respite services.
In late October 2021, Mrs X telephoned the Council as Mr Y was still awaiting the financial assessment review and was now around £1000 in debt. A fresh financial assessment was completed a month later. Mrs X had asked that Mr Y’s contributions to the household expenses in terms of board and lodgings be taken into account; however, the Council refused. They stated that an allowance for Disability-related Expenditure (DRE) for clothing and laundry had already been made and that Mr Y had no legal responsibility for “board and lodgings”. Mr Y’s contribution towards the cost of his support plan had been assessed as £56.29 per week. Mrs X was not happy with the Council’s decision not to include the board and lodging costs and refused to pay the outstanding invoices. By December 2021, Mr Y owed the Council £2000, relating to charges dating back to April 2021.
Mrs X subsequently complained to the LGSCO that the Council did not advise Mr Y or her about the costs for the day care provision, or discuss this with her when she complained to them. The Council also continued to charge Mr Y while they were undertaking a reassessment of his financial contribution, which had put him into considerable debt.
Mrs X confirmed that whilst she agreed that Mr Y needed to contribute towards his care costs, the Council had not taken into account Mr Y’s other living expenses and DRE.
What was found
The LGSCO found the Council were at fault in relation to their view that Mr Y’s household expenses ‘could not’ be included. The LGSCO said that the Council should consider this fully and provide a clear and detailed explanation. It was inadequate to simply say ‘it cannot be included’.
The report pointed out that Mr Y’s parents were not responsible for supporting him – he was not a dependant on them in legal terms. The Council had stated that they do not assume that parents are responsible for non-dependants and that they would consider ‘any reasonable housing costs’ and DRE. The LGSCO however, concluded that the Council was not clear in the way they dealt with Mr Y’s household contributions. This had caused Mr and Mrs X undue stress, anxiety and uncertainty.
The Council had allowed Mr Y the sum of £50 toward household costs until November 2021. The LGSCO however found no evidence to show that the Council had communicated or discussed with Mrs X the change in their approach in relation to this allowance. After receiving the first draft of the LGSCO decision, the Council had agreed to pay back Mr Y a sum equal to half of the £50 allowance from November 2021 (the last time it was allowed) until the final report. This meant £25 off the debt per week from November 2021 to the date of the final decision, which the LGSCO deemed to be fair.
The LGSCO did not agree with the Council’s approach that Mr Y’s household costs should be limited to DRE. The report set out that Mr Y should be able to contribute his fair share to the household costs. This included costs such as rent, maintenance, food and utilities that were not related to disability, specifically. Also highlighted in the report was the point that the minimum income guarantee (MIG) is intended to be applied after any housing costs, for example rent or mortgage payments, are deducted. It would be a matter for the Council to determine how Mr Y would be left with the MIG, after any household cost contributions were made.
The LGSCO also found no evidence indicating that the Council had advised Mrs X of the outcomes of the financial assessments carried out in June 2021.
As a result of the fault identified, which did cause injustice, the LGSCO recommended the Council: –
- Apologise to both Mr Y and Mrs X for the fault identified and set out the actions it would take to address the same;
- Pay Mr Y £25 per week, for the period of when the £50 allowance was not made for ‘board and lodging’ from November 2021 to the date of the final decision; allowing the Council to reduce this sum by any outstanding debt owed by Mr Y;
- Ensure that clear information is provided to Mr Y and Mrs X about how Mr Y is expected to make a fair contribution to household costs; and
- Review its communication around charging in this case and to ensure that all staff are clear in future about how it allows for non-dependent household contributions.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public.
The housing costs point
The LGSCO highlights the clear distinction between contributions made to household costs that do not need to relate to one’s disability; and DRE which is specifically related to one’s disability.
The Council here was clearly wrong in suggesting rent, etc. would only have been considered in the DRE element; only the additional costs which are related to the disability can be considered as DRE, but the household costs are a mandatory disregard albeit not nailed down in an exact way. Some councils include house and boiler insurance, others don’t, as far as we are aware. Utility bills are not generally allowed as housing costs, but all charging and disregards are discretionary with a minimum in some cases, so it is POSSIBLE at least. The position would therefore be that a normal utility bill (unrelated to the disability) would at the most need to be considered as a household cost (in the discretion of the council) and any above average heating costs, which are related to the disability, would need to be considered under DRE.
The report is unsatisfactory on whether the changes were changes of policy or just incompetent or disjointed communication about the facts, in our view, however. But the back and forth and the lack of notice and clarity meant Mr Y and Mrs X were left with a lot of uncertainty.
The investigator said this:
Mr Y’s contribution to the household costs should not be limited to disability related expenditure. This only deals with the amount of expenditure which is solely due to his disability. Mr Y should be able to contribute a fair amount to the combined household costs including such costs as rent, utilities (not related to disability), maintenance, and food. The minimum income guarantee (see paragraph 9 above) is intended to be applied after any housing costs (eg rent or mortgage payments) are deducted. Mr Y may not have a legal obligation to pay housing costs, but he should be left with the MIG after any contribution to housing costs.Much as we wish we could agree here, we can’t – not with the whole paragraph, that is, although we like the highlighted section to the effect that a disabled person should be able to contribute to household costs: even if the person lacks capacity to contract formally, everyone is liable to pay a reasonable sum for use of premises and it can be reclaimed by an appointee or anyone having lawful access to the person’s cash, under s7 of the Mental Capacity Act. But not as to disregarding it from income in all circumstances: we think that what may have happened here is that a non-specialist LGSCO investigator has made a decision by applying general principles or intentionally sought to make the report easy for non-lawyers to read.
“ESA contains an element, regarded as sufficient by that scheme where there is no liability on an individual to pay mortgage, rent or council tax to a third party.” The logic here was that their presence in the house would mean that a non-dependant’s reduction would be made from the HB of the homeowner on the footing that they’d be contributing.
What about ordinary rent payments, one would logically enquire? The assumption seems to be that people paying rent formally will be getting Housing Benefit for that, and thus would only get the excess rent being paid, off their means assessment, by way of a housing cost disregard.
If a person being financially assessed for care charges is a person not getting income replacement benefits or housing benefit but paying rent, with a legal liability, for whatever reason, then one can see that there does need to be a policy – there would seem to be no justification for NOT allowing a deduction for that payment for housing.
So we think that this aspect of the report is unsatisfactory, from the council’s perspective (although we are not applauding its lack of knowledge or proper communication, of course).
The messy assessments and communications failings
The first time Mrs X could potentially have been aware of Mr Y’s charge for his care, was in July 2021, after the financial assessments were completed. However, the LGSCO makes clear there was no evidence these assessment outcomes had been sent to Mrs X. The first she became aware of this, was when she received an invoice in July 2021, some four months after the charges had come into effect.
The Council were aware of the fact that Mrs X assisted Mr Y and should have sent the outcome of the assessments to her.
he LGSCO has made clear on numerous occasions the importance of giving notice to changes and fee increases and the need for changes to be put in writing so that the user of the service or their formal representative/proxy/carer can consider their position and evaluate the pros and cons of continuing to use that service. There is also the public sector equality duty to consult on significant changes to a charging policy, given the fundamental effect it is bound to have on disabled or elderly people in the service user cohort – and this provides an evidence base about the number of people who may actively choose to stop having care – and thus the possibility that the proposed change negates the whole intention of Parliament regarding care and support needs.
When Mrs X asked the Council to re-assess Mr Y’s finances, the Council took nearly four months to complete this. The LGSCO made no reference to this.
Mrs X had also made a complaint about DRE not being considered by the Council. The report does not detail what items of DRE Mrs X had asked to be considered and the LGSCO did not make reference to any specific items or deal with this aspect of the complaint.
The full Local Government Ombudsman report on the actions of North Yorkshire County Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/charging/21-015-815.