Decision Date: 8th June 2022
What happened
Since 2013, Mrs Y had been receiving direct payments from the Council. She used these payments to pay her daughter (Ms X) for the care and support she provided her with.
In 2019, after a financial assessment, the Council decided that Mrs Y did not need to contribute towards her own care (it counted the cost of major house works as a discretionary allowance).
The Council wrote to Mrs Y in May 2021, to notify her that the allowance for the property improvement had now ended, and so a new financial assessment had been carried out. Mrs Y was now required to pay £75 a week towards her care. The letter further noted that this assessment was subject to review as the Council did not have updated records on Mrs Y’s pension, housing and disability related expenditure (DRE). The Council included its standard allowance for DRE of £10 per week. A form was included within the letter for Mrs Y to send in correct figures and request a financial assessment review if she wished. Ms X claimed none of this paperwork had been received.
Ms X made a complaint to the Council. The Council explained that she needed to fill in the financial assessment form provided within the earlier correspondence so that it could review the charges. It also asked Ms X and Mrs Y to provide receipts for any DRE.
In March 2022, Ms X filled in a financial assessment form. The Council acknowledged that she had done so compliantly. However, Ms X was claiming £55 per week DRE – the Council’s policy only allowed £10 per week for DRE for those on the middle rate of the care component of Disability Living Allowance. Above the £10 threshold, the service user must provide evidence of costs for DRE. As such, the Council requested receipts for the £55 per week DRE Ms X was claiming on behalf of Mrs Y. It also said that it would accept three months’ worth of receipts and backdate them if necessary.
What was found
The Council was not at fault for conducting an assessment in 2021 without first contacting Ms X because when it did, a form was included for Mrs Y to provide the correct figures and request a review if necessary. Ms X could have used these forms with the correct information and the financial assessment would have been backdated [which would suggest the claim of not receiving the forms was not believed.]
The Council was not at fault for requesting evidence of DRE charges above £10 per week (even when it had not asked Ms X and Mrs Y to do this previously). The Council’s policy had always been clear that evidence must be provided for DRE above the £10 per week standard allowance. The fact that it had allowed some DRE previously without evidence did not mean it should continue to do so against its own policy. File notes from 2018 showed that the Council had allowed £55 per week DRE then and Ms X had agreed to send receipts. She had therefore been aware since 2018 that she needed to send receipts in – the Council’s failure to follow up on this previously did not mean the policy no longer applied. This error did not disadvantage Mrs Y and it was reasonable for the Council to now correct its omission.
The Council used the London Living wage to calculate the appropriate amount and the LGSCO could not see any evidence of fault in how this had been done. [No other detail wast given on this and it was all the LGSCO report said on the calculation of rate.] The Council’s calculations showed a rate of £11.50 per hour was paid and that direct payment amounts were also appropriately modified when Mrs Y’s budget changed.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
Here the Council has previously accepted DRE above the standard allowance from Ms X and Mrs Y without the evidence of receipts (against its own policy) but suddenly changed its stance, catching out the complainant. This was despite Ms X agreeing to provide receipts for DRE in 2018. However, the point of interest here is that, despite the fact the council had previously allowed some DRE without evidence, that does not mean it has to continue doing so. The public law doctrine of ‘legitimate expectation’ can sometimes provide a foundation for the position that the council must announce a change of practice before doing so, (as long as that practice has not been positively unlawful), but here the LGSCO does not seem to have thought that any such expectation had been raised, EITHER because he thought that Ms X knew that receipts were required, OR because there had been a mere waiver of a clear policy about above allowance DRE claims. Here both appear to be the case therefore this was not found to be fault.
Of more concern though, is the second complaint relating to the calculation of the DP hourly rate. The LGSCO has accepted the Council’s approach of taking the London living wage as the rate at which to set the DP hourly rate. We think this is wrong.
Although the LGSCO report does not specifically tell us what Ms X’s issue with the rate was, we would suggest that paying the minimum or even the ‘living’ wage as opposed to the market rate meant that the Council has failed in its duty to provide a personal budget that is sufficient to meet needs.
The Care and Support Statutory guidance highlights three principles in relation to setting personal budgets, which are transparency, timeliness and sufficiency. Sufficiency is important as the amount calculated by the local authority must be sufficient to meet the person’s assessed needs and must take into account the reasonable preferences to meet needs as detailed in the care and support plan. This means having a rationale for the budget that can be understood and seen to be evidence-based and, that it reflects the cost to the council of meeting need.
Westminster City Council may have believed the London Living Wage to be sufficient, perhaps as the rate its commissioned providers were required to pay to their own care workers; but the law needs to be applied in context and a direct payment provided to pay for an employee who is to be directly employed by an individual is not rationally able to be regarded as likely to be the same as it would cost the council (due to such things as block purchasing and economies of scale). The Guidance makes it clear that the market rate must be paid – indeed, a local ‘quality’ market rate to overcome that particular problem. The evidence base needs to relate to what the actual cost to employ PAs locally would be. The council’s evidence of sufficiency cannot be based purely on an average or the concept of a minimum or living wage, without regard to the reality of the market in question – and the rate for PAs has changed radically since 2020. It is therefore disappointing that the LGSCO failed to ensure that the Council had considered whether the London Living Wage was actually sufficient rather than accepting an arbitrary application of it.
Similar circumstances were considered in case law from Davey v Oxfordshire County Council [2017] EWHC 354 (Admin), where the Council set the personal budget based on what the claimant described as below the “going rates.” The claimant in the Davey case was unsuccessful in challenging the Council’s approach, in his particular situation as being an insufficient amount to recruit PAs because the evidence that the staff (also being family) would leave, was simply non-existent. It may have been significant to the investigator, in this complaint, that there was no actual suggestion that the person employed was pressing for an increase or threatening to leave, either, no doubt because she was the cared-for person’s daughter.
The full Local Government Ombudsman report on the actions of Westminster City Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/21-009-408